United States v. Reveles

11 Cal. Daily Op. Serv. 13,071

2011 Daily Journal D.A.R. 15,535

660 F.3d 1138

UNITED STATES of America, Plaintiff–Appellee,

v.Robert REVELES, Defendant–Appellant.

No. 10–30313.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 2011.Filed Oct. 24, 2011.

Michael Filipovic, First Assistant Public Defender, Seattle, WA; Ulrike B. Connelly, Perkins Coie LLP, Seattle, WA, for the defendant-appellant.

Jenny A. Durkan, United States Attorney, Barbara J. Sievers, Assistant U.S. Attorney, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. CR 09–5883.Before: JOHN T. NOONAN and MILAN D. SMITH, JR., Circuit Judges, and ANDREW J. GUILFORD,^* District Judge.

OPINION

GUILFORD, District Judge:

This case concerns whether the Government violated the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution by prosecuting and convicting Robert Reveles for a crime after the Navy punished him for the same offense. The Government argues that the Double Jeopardy Clause is not implicated because the non-judicial punishment (“NJP”) administered by the Navy under 10 U.S.C. § 815 is not criminal in nature. The Court agrees, and holds that the Government's prosecution of Reveles was not barred by the Double Jeopardy Clause. Reveles' conviction is AFFIRMED.

FACTS

The facts of this case are straightforward and undisputed. Reveles was accused of drunk driving in October 2009 on Kitsap Naval Base in Bremerton, Washington. Reveles was then charged by the Navy in an Article 15 Uniform Code of Military Justice (“UCMJ”) proceeding, which is considered an NJP proceeding. The maximum punishment that the presiding officer could impose in the proceeding was: (a) diminished rations; (b) correctional custody; (c) forfeiture of pay; (d) reduction in pay grade; (e) extra duties; (f) restriction to limits; (g) detention; (h) an admonition; and (i) a reprimand. See UCMJ Art. 15(b). As discussed later, limitations on the severity of these punishments include a maximum of 30 days of correctional custody.

In the NJP proceeding, Reveles was found guilty of drunken operation of a motor vehicle, in violation of Article 111 of the UCMJ, and was sentenced to: (a) forfeiture of $200 of one month's pay; (b) a single-grade pay reduction (a total loss of $316 per month); (c) extra duty for 45 days; and (d) restriction to ship for 45 days.

Based on the same conduct, Reveles was later charged in federal court with drunk driving in violation of 18 U.S.C. §§ 7 and 13 and Revised Code of Washington § 46.61.502. Reveles pled not guilty and filed a Motion to Dismiss for Alleged Violations of the Double Jeopardy Clause (“Motion to Dismiss”), which was denied by a magistrate judge. While preserving his right to appeal the magistrate judge's denial, Reveles entered a conditional guilty plea and was sentenced to 24 hours in a detention center and a $375 fine. Reveles then appealed the magistrate judge's denial of his Motion to Dismiss to the district court. The district court denied his appeal in October 2010.

ANALYSIS

The Fifth Amendment's Double Jeopardy Clause states 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 Clause protects only against the imposition of multiple criminal punishments for the same offense....” Rivera v. Pugh, 194 F.3d 1064, 1068 (9th Cir.1999) (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (emphasis in original)). In Rivera, the Supreme Court set forth the test we must apply:

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Even in those cases where the legislature has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.

Id. (quoting Hudson, 522 U.S. at 99, 118 S.Ct. 488).

Thus, we must first determine whether Congress intended NJP to be criminal or noncriminal. And if NJP was intended to be noncriminal, we must then examine whether NJP is so punitive that it has been transformed into a criminal penalty.

1. WHETHER CONGRESS INTENDED NJP TO BE CRIMINAL

Reveles argues that Congress intended NJP to be criminal in nature. This argument fails.

“The UCMJ provides 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. 15 UCMJ, 10 U.S.C. § 815.” Middendorf v. Henry, 425 U.S. 25, 31, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976). Unlike courts-martial, which resemble judicial proceedings, NJP “is an administrative method of dealing with the most minor offenses.” Id. at 31–32, 96 S.Ct. 1281(internal citations omitted).

When interpreting a statute, “we look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress.” Zuress v. Donley, 606 F.3d 1249, 1252–53 (9th Cir.2010) (quoting Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir.1996)). A review of the NJP statute's plain language reveals that Congress intended it to be noncriminal in nature.

The text of the statute shows an intent to distinguish minor NJP disciplinary proceedings from criminal proceedings. See 10 U.S.C. § 815. According to the statute, NJPs are “disciplinary punishments for minor offenses without the intervention of a court-martial....” Id. at § 815(b). The title of the statute, “Commanding officer's non-judicial punishment,” confirms Congress' intent to distinguish NJP from traditional criminal proceedings. Id. (emphasis added); but see State v. Ivie, 136 Wash.2d 173, 961 P.2d 941, 945 (1998) (state court holding that the statute's title indicated NJP was criminal, rather than civil, in nature). Thus, the language of the NJP statute indicates that Congress intended NJP to be noncriminal in nature.

Legislative history confirms Congress' intent to make NJP noncriminal. The Senate Armed Services Committee commented that NJPs “deal with minor infractions of discipline without resorting to criminal law processes.” S.Rep. No. 87–1911, at 2 (1962), 1962 U.S.C.C.A.N. 2379, 2380 (emphasis added). It further stated that these punishments are “non-judicial” and are “ not considered as a conviction of a crime and in this sense ha[ve] no connection with the military court-martial system.” Id. (emphasis added).

The Manual for Courts–Martial (“MCM”) and the Manual of the Judge Advocate General, Department of the Navy (“JAGMAN”), are also helpful in determining the intended nature of NJP. Although neither of these documents is technically “legislative history,” each of them confirms an intent to make NJP a noncriminal sanction. Specifically, the MCM states that NJP's purpose is to “promote[ ] positive behavior changes in servicemembers without the stigma of a court-martial conviction.” MCM, pt. V, ¶ 1c (2008). And the JAGMAN's description of “Captain's Mast” proceedings—an alternate name for modern-day NJP proceedings—corroborates this purpose:

Captain's mast/office hours that results in nonjudicial punishment is not a criminal trial; it is a disciplinary proceeding.... Such punishment is designed for minor misconduct in a nonjudicial forum, without the permanent stigma of a record of “Federal conviction.” As such, the standard of proof by which facts must be established at mast or office hours is a “preponderance of the evidence,” rather than “beyond a reasonable doubt,” as it is at courts-martial.

JAGMAN § 0110(b) (emphasis added).

To support his argument that the MCM indicates that NJP is criminal in nature, Reveles notes that the MCM defines a “criminal proceeding” to include “nonjudicial punishment proceedings.” MCM, pt. IV, ¶ 96c. Reveles also cites a case from the U.S. Court of Appeals for the Armed Forces, United States v. Arriaga, 49 M.J. 9, 12 (C.A.A.F.1998), that refers to this definition.

But the MCM section and case Reveles cites both concern obstruction of justice charges. The MCM section states that “ [f]or purposes of this paragraph [concerning obstruction of justice], ‘criminal proceedings' includes nonjudicial punishment proceedings....” MCM, pt. IV, ¶ 96c (emphasis added). Thus, while the MCM appears to extend obstruction of justice charges to conduct concerning NJP proceedings, it never indicates that NJP is criminal in nature. Reveles' argument that this narrow provision has greater applicability is unpersuasive.

Numerous courts have also recognized that Congress intended NJP to be noncriminal. For example, the Armed Forces Court of Appeals has stated that “the title of the [NJP] legislation—‘Commanding officer's non-judicial punishment’—underscores the legislative intent to separate NJP from the judicial procedures of the military's criminal law forum, the court-martial.” United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F.1999). Similarly, the United States Court of Claims has held that “nonjudicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as noncriminal in nature.” Wales v. United States, 14 Cl.Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed.Cir.1987)); see also Cochran v. United States, 1 Cl.Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251–52 (Ct.Cl.1980); United States v. Trogden, 476 F.Supp.2d 564, 568 (E.D.Va.2007); State v. Myers, 100 Hawai‘i 132, 58 P.3d 643, 646 (2002); but see United...