Civilian Prosecution After Military Non-Judicial Punishment Is Not Double Jeopardy – U.S. v. Stoltz

July 2, 2013 by David S. Seltzer

The United States military has its own system of justice that parallels the one we’re used to in the civilian world. However, it has some important differences, and one of those came to the surface in U.S. v. Stoltz, a decision of the Ninth U.S. Circuit Court of Appeals. Christopher Stoltz was in the Coast Guard when he was caught in possession of child pornography. His commanding officer, who controls whether and how a military service member should be punished, ultimately decided to impose non-judicial punishment. However, Stoltz was not informed of his right to reject this and opt for a court-martial instead. When he was released from the military, Stoltz was indicted for the same crime by an Alaska grand jury, but the federal district court dismissed the charges because of concerns that the prosecution may be double jeopardy. The Ninth Circuit rejected this, finding that non-judicial punishment was not jeopardy.

Stoltz was caught looking at child porn videos by a shipmate on the cutter Alex Haley, moored at Nome, Alaska. The shipmate reported it, and Stoltz ultimately admitted to possessing the material to a Coast Guard investigator. His commanders opted against a court-martial because they didn’t want to induce civilian criminal charges as well, so he was given extra duty, restriction to the ship, a reduction in rank and an $1,800 fine. Stoltz was not informed of his right to choose a court-martial. His service commitment was not renewed by the Coast Guard, though the separation was “general under honorable conditions.” Two years after his separation and four years after the incident, Stoltz was indicted in civilian federal court. Though military service members who faced non-judicial punishment routinely face civilian criminal charges without double jeopardy concerns, the judge ultimately dismissed because Stoltz was not advised of his right to go to a court-martial.

On the appeal from prosecutors, the Ninth Circuit reversed. It first assumed without deciding that a vessel exception to the right to choose a court-martial did not apply. Whether it did or not, the court said, dismissal was not warranted. The Double Jeopardy Clause of the Fifth Amendment says no one may be twice put in jeopardy for the same offense. But under case law, the Ninth said, jeopardy applies only after a jury is empaneled, or in a bench trial, after the court starts to hear evidence. In non-judicial punishments, as both sides agreed, the proceedings are non-criminal. Thus, Stoltz has never been previously charged with this possession crime or any other, the court said, and there is no double jeopardy. Stoltz further argued that there was a due process concern in the NJP from not advising him of his rights, but the Ninth said the NJP was not sufficiently connected to the current criminal proceeding for this to be an impediment, and in any case his remedy would be to apply to a military board for correction.

Stoltz must be feeling rather cheated by this decision. His commander decided on non-judicial punishment expressly to avoid a parallel civilian proceeding for child pornography crimes, but choosing a court-martial instead would have precluded any such proceeding. It’s true that Stoltz can appeal to a military board to “correct” his service record, but the damage is done—his career in the Coast Guard is over. This may not be considered jeopardy, legally speaking, but I’m sure it feels like punishment to Stoltz. Most military crimes are not prosecuted in the civilian world if the military has already taken care of them; the fact that this one was may show how seriously the authorities take cyber crimes involving children. That’s why it’s vital to call an experienced attorney as soon as possible after you’re charged, no matter what system of justice is bringing the charges.

If you’re accused of a serious crime involving computers, technology or the Internet, don’t hesitate to call Seltzer Law, P.A. We answer the phones 24 hours a day and seven days a week, because we know police officers don’t leave the office at 5 p.m. To learn more or set up a free consultation, call 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Similar blog posts:

Eighth Circuit Sends Back Child Porn Case Because Court May Have Considered Rehabilitation – U.S. v. Olson

Sixth Circuit Rules Child Porn Sentence Not Unreasonable Despite Defendant’s Military Service – U.S. v. Riley

Defendant May Not Be Convicted for Both Receipt and Possession, Eighth Circuit Rules – U.S. v. Huether