Case 3:09-cr RBL Document 34 Filed 10/20/10 Page 1 of 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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1 Case :0-cr-0-RBL Document Filed 0/0/0 Page of HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 0 UNITED STATES OF AMERICA, Plaintiff, v. ROBERT M. REVELES, Defendant. Case No. CR0- RBL TO AFFIRM DENIAL OF MOTION TO DISMISS FOR ALLEGED VIOLATION OF THE DOUBLE JEOPARDY CLAUSE 0 THIS MATTER comes before the above-entitled Court upon Defendant s Appeal of Magistrate Judge J. Richard Creatura s Order Denying Defendant s Motion to Dismiss for Alleged Violation of the Double Jeopardy Clause. Oral argument is not necessary to decide this appeal. Having considered the entirety of the records and file herein, and for the reasons stated, the Magistrate Judge s decision is AFFIRMED. I. FACTS AND PROCEDURAL HISTORY The parties have stipulated to the facts. [Dkt. #]. Defendant, Robert Reveles, was accused of drunk driving on October, 00 on Kitsap Naval Base in Bremerton, Washington. Shortly thereafter, Reveles was charged by the Navy in an Article Uniform Code of Military Justice ( UCMJ ) proceeding. The Navy found him guilty of drunken operation of a motor vehicle, in violation of Article of the UCMJ, and sentenced him to days of restriction, reduction to the next pay grade, extra duty for days, and forfeiture of $00 of one month s pay. The Naval proceeding was considered non-judicial punishment (NJP). Subsequently, Reveles was charged in federal court with violating U.S.C. and and RCW..0. Reveles pled not guilty and filed a Motion to Dismiss for Alleged Violations of the Double Jeopardy Clause. The Magistrate Judge heard oral argument in Defendant s case, and thereafter denied the Page -

2 Case :0-cr-0-RBL Document Filed 0/0/0 Page of 0 0 Motion to Dismiss. Reveles entered a conditional guilty plea and was sentenced to hours in a federal detention center and a $ fine. Defendant filed this timely appeal of the Magistrate Judge s denial of his Motion to Dismiss for Alleged Violations of the Double Jeopardy Clause. II. DISCUSSION The issue presented on appeal is whether non-judicial punishment is considered criminal punishment so as to invoke the protections of the Fifth Amendment s Double Jeopardy Clause. The Double Jeopardy Clause prevents the government from criminally punishing a defendant for the same offense twice. United States v. Ursery, U.S., () (citing Witte v. United States, U.S., ()). The Court has long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could in common parlance, be described as punishment. Hudson v. United States, U.S., - () (internal citations ommitted). At issue here is whether the NJP imposed by the Navy was a criminal punishment, thereby precluding the subsequent prosecution of Defendant in civilian court. A. Under a Middendorf Analysis, Article Punishments are Non-Criminal in Nature and Do Not Invoke Double Jeopardy Concerns. The UCMJ has four methods for disposing of cases involving offenses committed by servicemen: the general, special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to Art.. Middendorf v. Henry, U.S., (). The Middendorf Court said an Article NJP, which is a lesser punishment than a summary court-martial, is an administrative method of dealing with the most minor offenses. Id.at -. The Court stated it is indisputably clear that a summary court-martial is not considered a criminal prosecution, and thus, defendants have no right to counsel under the Fifth Amendment Due Process Clause, nor under the Sixth Amendment. Id. at. Although Reveles s case deals with the Double Jeopardy Clause of the Fifth Amendment, it logically follows that if the Court found a summary court-martial to be non-criminal punishment, then a lesser punishment would also be characterized as non-criminal. Therefore, under the Middendorf Court s analysis, Defendant s NJP proceeding was not criminal, and thus, prosecution in federal court was not precluded. B. Alternatively, a Hudson Analysis Also Leads to the Conclusion that Article Punishments Were Intended by Congress to be Non-Criminal in Nature and Do Not Invoke Double Jeopardy Concerns. The Magistrate Judge based his analysis on Hudson v. United States. To determine if there are multiple Page -

3 Case :0-cr-0-RBL Document Filed 0/0/0 Page of 0 0 punishments so as to invoke the Double Jeopardy Clause, Hudson asks: ) if the punishment in question is civil or criminal in nature; and ) whether the statutory scheme was so punitive either in purpose or effect to turn what was meant to be a civil remedy into a criminal penalty. Hudson, U.S. at. Determining if a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Id. To analyze the second prong of Hudson, seven factors must be considered in relation to the statute on its face. Id. at -00 (quoting Kennedy v. Mendoza-Martinez, U.S., ()).. Congress Intended NJPs to be Non-Criminal.. Defendant argues on appeal that Congress s intent in enacting Article of the UCMJ was to establish a criminal punishment system. He argues the statute punishes criminally because it uses traditionally criminal words, it is titled Commanding Officer s Non-Judicial Punishment, and it is part of an overall Act regarding justice. Title 0, United States Code, Section states that NJPs are disciplinary punishments for minor offenses. 0 U.S.C. (b). The Senate Armed Services Committee commented that punishments under Article are non-judicial, and thus, not considered to be a conviction of a crime. S.Rep. No.- () reprinted in U.S.C.C.A.N., 0. Case law reflects this intent, as well. The Armed Forces Court of Appeals determined that, despite the title of the Act, the legislative intent was to separate NJP from criminal courts-martial, the military s criminal law forum. United States v. Gammons, M.J., (Ct. App. Armed Forces ). In Wales v. United States, Cl. Ct. 0, (), the court stated that NJP is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature. See also United States v. Trogden, F.Supp.d, (E.D. Va. 00); Cochran v. United States, Cl. Ct., (); Dumas v. United States, 0 F.d, (Ct. Cl. 0); State v. Myers, P.d, (Haw. 00). Further, the Manual for Courts-Martial ( MCM ) specifically notes under Purpose that [n]onjudicial punishment... promotes positive behavior changes in servicemembers without the stigma of a court-martial conviction. MCM, V-I, para..c. As such, Congress intended NJPs as civil remedies, not criminal penalties. Defendant next argues that the MCM itself prevents an accused from being prosecuted twice. The MCM states, Nonjudicial punishment may not be imposed for an offense tried by a court which derives its authority from the United States. MCM, V-I, para..f.. Defendant cites to the analysis section of Appendix to the MCM for the proposition that nonjudicial punishment precludes further prosecution in Page -

4 Case :0-cr-0-RBL Document Filed 0/0/0 Page of 0 0 civilian court. See MCM, A-, para..f.. Appendix, in turn, cites to Army Regulations/Military Justice, which prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. AR -0, Chapter, - (Sept., 00). AR -0 states, A person subject to the UCMJ who has been tried in a civilian court may, but ordinarily will not, be tried by courtmartial [sic] or punished under Article, UCMJ, for the same act over which the civilian court has exercised jurisdiction. Id. at Chapter, -. Therefore, the regulations, which are used to implement the MCM, generally preclude the military from prosecuting a servicemember after he has already been prosecuted civilly. However, they do not presume to preclude prosecution in civilian courts after military punishment has been imposed. Finally, Defendant argues that because the military sanctions imposed on him exceed those allowable by civilian employers, the punishment is criminal. See United States v. Volpe, F.Supp., - (N.D. N.Y. ) (military sanctions that affect personal choices in off-duty hours are criminal punishments not allowed by a civilian employer and civilian prosecution is a violation of the Double Jeopardy Clause). An opinion by a district court within the Second Circuit is not, however, binding on this court. If the government, acting as a sovereign rather than an employer, imposes disciplinary sanctions that are the functional equivalent of criminal punishment, then Double Jeopardy may be a concern. United States v. Camacho, F.d, n. (th Cir. 00). The fact that the punishment may include confinement does not necessarily render the punishment criminal. Middendorf, U.S. at. Defendant was confined to the ship for fortyfive days, which included a prohibition on phone privileges, civilian clothing, music, and television. But this is not dispositive. There are stark differences between the diverse civilian community and the much more tightly regimented military community. Id. at (citing Parker v. Levy, U.S., ()). As Defendant notes in his brief, military men and women voluntarily submit to increased regulation when they sign up for the service. This increased regulation is not the functional equivalent of criminal punishment. Camacho, F.d at n.. The Magistrate Judge was correct in finding NJPs are non-criminal.. NJPs are Not So Punitive in Nature That They are Rendered Criminal Punishments. The full text of the Army Regulations/Military Justice may be found at The Middendorf Court considered confinement in the context of the Sixth Amendment. Page -

5 Case :0-cr-0-RBL Document Filed 0/0/0 Page of 0 0 The second prong of Hudson asks if the punishment in question, even though a non-criminal sanction, was so punitive that it rendered the punishment criminal. There must be clear proof that the punishment is severe enough to overcome legislative intent. Hudson, U.S. at 00. Seven factors were outlined in Kennedy v. Mendoza-Martinez to make this determination. Kennedy, U.S. at. The factors must be considered in relation to the statute as a whole, and none alone is dispositive. Hudson, U.S. at 00. First, Kennedy asks if the sanction involves an affirmative disability or restraint. Kennedy, U.S. at. The Hudson Court specifically questioned whether imprisonment was involved. Hudson, U.S. at 0. NJPs do not include imprisonment as potential punishment. 0 U.S.C. (b); MCM, V-I, para..c. Although Defendant was confined to the ship for forty-five days, there was no imprisonment in the brig (Navy jail). The second factor of Kennedy is whether the sanction has historically been viewed as punishment. Kennedy, U.S. at. NJPs are inevitably a form of punishment, but the question here is whether they are criminal punishment. As noted above, the legislative intent is clear that NJPs were meant as disciplinary sanctions, not criminal punishment. The third factor is whether the sanction comes in to play on a finding of scienter. Kennedy, U.S. at. Drunk driving has no intent requirement, and NJP proceedings allow a commanding officer to impose punishment without inquiring into the Defendant s state of mind. Fourth, Kennedy asks if the sanction will promote the traditional aims of punishment: deterrence and retribution. Kennedy, U.S. at. Deterrence may serve civil as well as criminal goals. Hudson, U.S. at 0 (quoting United States v. Ursery, U.S., ()). Indeed, all civil penalties have some deterrent effect. Hudson, U.S. at 0. The MCM states that NJPs are meant to instill good order and discipline. MCM V-I, para..c. NJPs will have a deterrent effect, as they are meant to promote the military s stated goals of maintaining good order. However, deterrence alone does not make the punishment criminal. Page -

6 Case :0-cr-0-RBL Document Filed 0/0/0 Page of 0 0 The next factor examines if the behavior the sanction applies to is already a crime. Kennedy, U.S. at. Neither party disputes that Defendant committed a crime. The Supreme Court has held that monetary penalties and debarment sanctions are not criminal simply because the underlying offense is criminal. Hudson, U.S. at 0 (citing United States v. Dixon, 0 U.S., 0 ()). In Hudson, the sanctions were considered an administrative non-criminal action by the Office of the Comptroller of the Currency. Id. Defendant s punishments are analogous. Defendant received monetary penalties (forfeiture of pay and reduction in pay grade), which were combined with extra duties and confinement to the ship. These were imposed administratively by Defendant s commanding officer, and should not be considered criminal. See also Trogden, F.Supp.d at 0 ( It follows that this fact [that DUI is a crime] is also insufficient to render the NJP at issue reduction in rank, forfeiture of pay, restriction to unit, and extra duties as criminally punitive, and this factor is considered neutral ). Sixth, the court must determine whether there is an alternative purpose to which the statute may be rationally connected. Kennedy, U.S. at -. The MCM states that the purpose of NJP is to provide[] commanders with an essential and prompt means of maintaining good order and discipline and also promote[] positive behavior changes in servicemembers without the stigma of a court-martial conviction. MCM, V-I, para..c. Defendant s conviction in civilian court does not fundamentally advance these goals. The military turns to its own regulatory system to maintain discipline and good order. Discipline is not achieved exclusively or even primarily through use or threat of the military criminal law process, the courtmartial. Commanders use a combination of tools to maintain discipline including leadership by example, training, corrective measures, administrative actions authorized by applicable regulations, and NJP. Gammons, M.J. at. Maintaining discipline and order within the military is the alternative purpose to NJP proceedings. In Hudson, the underlying offense was violation of federal banking statutes. Hudson, U.S. at. Page -

7 Case :0-cr-0-RBL Document Filed 0/0/0 Page of 0 0 Finally, Kennedy asks if the sanction appears excessive compared to the alternative purpose. Kennedy, U.S. at. Article details a list of punishments that may be imposed by a commanding officer in NJP proceedings. MCM V-I, para..c. In enacting Article, Congress put limits on these punishments and only those punishments specifically delineated in the statute may be imposed. Id. Judicial deference to... congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged. Rostker v. Goldberg, U.S., 0 (). Congress s determinations regarding the necessity for discipline and good order should be given great deference. The sanctions imposed from NJP proceedings are not excessive when compared against the military s goals of maintaining discipline and order. III. CONCLUSION The Supreme Court has determined that summary courts-martial are not criminal proceedings in the context of the Sixth Amendment. It follows that NJPs, even in the context of the Fifth Amendment, are also not criminal. Alternatively, using the Hudson analysis, Double Jeopardy is not implicated here because Congress s intent in enacting Article was not to make NJPs criminal, but rather to serve as an alternative to courts-martial. When analyzing Article under the seven factors listed in Kennedy, the statute is not so punitive in nature that it becomes a criminal penalty. The Magistrate Judge s Order Denying Defendant s Motion to Dismiss for Alleged Violation of the Double Jeopardy Clause is AFFIRMED. DATED this 0 th day of October, 00 A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE Page -