Lots of Double Jeopardy Clause jurisprudence seems downright silly. Including but limited to the whole "dual sovereign" thing that allows multiple prosecutions for the exact same offense. Crazy.
So when I saw that this opinion was about someone who'd been prosecuted by the U.S. military, and then by the United States, I thought: "Oh. Is this going to be some absurd rule that says that's okay?" And sure enough, that's what the Ninth Circuit holds.
But you know what? It's right.
Judge Fisher gracefully points out that the defendant here wasn't subjected to a court martial by the U.S. Coast Guard. If he had been, then, yes, the Double Jeopardy Clause would have barred his subsequent criminal prosecution by the United States for the same offense.
Defendant instead was subjected to something in the military called "nonjudicial punishment" -- NJP. Something that's for "minor offenses" and in which the punishment is capped at 30 days confined to quarters (or in the brig), reduction in rank, loss of a month's of pay, and the like (e.g., KP duty). For a non-military guy like me, it sounds sort of like a misdemeanor. Or in military speak, like the sort of stuff your commanding officer can do to you when s/he thinks you've totally sucked. Not as serious or judicial as a full-blown court martial, with a trial and all. Just a way your superior can spank you when you're out of line.
So that's what happened to Chris Stoltz. He gets busted when one of his crew mates sees him watching kiddie porn on the ship. When it was docked in Nome, Alaska. (I'll omit the various things I might say at this point.) This is a big deal, so they wait to see if Stoltz gets prosecuted. But when nothing happens for months, the captain of the ship thinks it's important for the rest of the crew to see that Stoltz hasn't just gotten off scot-free. So they hold a Captain's Mast, Stoltz admits the offense, and he gets spanked with a one-step loss in rank, some extra duty and lost pay. Stoltz is eventually discharged from the Coast Guard (not surprisingly), though I was somewhat surprised that it wasn't a dishonorable discharge, but instead a "General Under Honorable Conditions" separation. (Seriously?! "Under Honorable Conditions"?)
Three years later Stoltz gets charged criminally for this same offense. Why'd it take so long? Not a clue. Seems crazy. But there you have it. At which point Stoltz raises his defense under the Double Jeopardy Clause. Which the district court guys, dismissing the indictment on that basis.
But the Ninth Circuit reverses. Yes, Stoltz could have been court martialed. But he wasn't. And, yes, Stoltz could have insisted upon a court martial rather than NJP (or, more accurately, could have rejected the NJP and forced the military to go the court martial route if it wanted to, since no one can make the military court martial you). But he didn't. That Stoltz could have essentially been charged criminally doesn't make a Double Jeopardy Clause violation when that's not what in fact transpired. Seems right to me. (Ditto for Judge Fisher's analysis about it not being a constitutional violation requiring dismissal of the indictment when the military neglected to inform Stoltz of his right to force the court martial route if he wanted. Similar deal.)
So in the end, notwithstanding the fact that I'm constantly suspicious of double jeopardy cases, I think this is the right outcome. Stoltz gets a criminal trial.
Mind you, as a non- (or only partially-) legal matter, I will note the sharp contrast between the type of punishment the military thought was appropriate and what Stoltz is facing in federal court. He's facing years and years in federal prison -- a long time -- for an offense the military only gave him a loss of one rank and an honorable discharge. The divergence between the two is pretty striking.
Which is not to say that one's right and the other's not. Perhaps the truth (or "justice") lies in the middle.
Though that's not likely what Stoltz will actually receive. It's a binary choice here. We've come a ways in recent years with respect to kiddie porn sentences. But there's still a monster difference between the slap on the wrist Stoltz received from the military and what he's looking at in federal court.
Huge.
