Fulton: Blockburger Teeters as CAAF Takes Up Double Jeopardy in United States v. Rice

 The United States prosecuted Colonel Rice for possessing child pornography twice: first in the Middle District of Pennsylvania and then at a general court-martial. The court-martial took place after Rice pleaded guilty in district court but before that court sentenced him. Both prosecutions were based on the same conduct. Judge Ryan, writing for the court, agreed with the Army Court of Criminal Appeals that the parallel prosecutions violated the Fifth Amendment’s Double Jeopardy Clause. Reversing ACCA in part, CAAF further held that the error required dismissal of the court-martial charges, even though the district court had already dismissed the duplicative civilian charge.
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The civilian and military charges were based on different statutes: The U.S. Attorney prosecuted Rice for violating 18 U.S.C. § 2252A. The convening authority referred a specification alleging that Rice violated Clause 2 of Article 134, UCMJ. That specification explicitly relied on Title 18 to define the offense under the general article. But even though the Army used Title 18 to define the offense, a strict application of the familiar Blockburger test would seem to confirm that the two charges represent different offenses because each contains an element that the other lacks. Blockburger v. United States, 284 U.S. 299, 304 (1932). Section 2252A contains a "jurisdictional hook" element, requiring a connection to interstate commerce. Article 134, of course, lacks this element. And since the military alleged a violation of Clause 2 of Article 134, the government had to prove that Rice’s conduct was of a nature to bring discredit upon the armed forces—an element not present in § 2252A.

Writing for a four-judge majority, Judge Ryan eschewed a rigid application of Blockburger’s elements test, and found that the multiple prosecutions violated the Fifth Amendment’s guarantee against double jeopardy. CAAF arrived at this conclusion for three reasons: First, it found no congressional intent to make Article 134 a vehicle for duplicative prosecutions; second, elements that are mere "jurisdictional hooks" don’t speak to the harm at which an offense is directed and should therefore be viewed differently than substantive elements; and, third, Blockburger should be applied in light of earlier Supreme Court precedent barring consecutive prosecutions in federal civilian and military courts.

Lack of congressional intent
Article 134’s expansive nature holds the potential for abuse, and CAAF is responsible for policing its amorphous boarders. CAAF found no evidence that Congress intended Article 134 to be a vehicle for duplicative prosecutions. According to Judge Ryan, "[s]uch a scheme would only work if misconduct alleged under Title 18 and Article 134, UCMJ, vindicated separate interests." Slip op. at 9. And the Supreme Court had settled the "separate interests" question in Grafton v. United States, 206 U.S. 333 (1907). (More on Grafton later.) Both parties agreed that had the government used Clause 3 to import §2252A into Article 134 the two prosecutions would have constituted a double jeopardy violation. CAAF found that Article 134 and Title 18 aren’t serving separate interests just because the government pins a Clause 1 or Clause 2 tail on the specification.

Jurisdictional hooks are different
Like many criminal statutes in Title 18, Section 2252A contains an element—often referred to as a "jurisdictional hook"—tying the substantive prohibition to an enumerated congressional power, usually Congress’ power to regulate interstate commerce. The Supreme Court has never directly addressed whether jurisdictional hooks count as elements for purposes of Blockburger and double jeopardy. But CAAF observed that the Supreme Court had disregarded them in other contexts, such as deciding whether a state law should be applied under the Assimilative Crimes Act. And the Supreme Court recently assumed (without deciding) that comparison of state and federal offenses for double jeopardy purposes could be performed without reference to the federal statute’s jurisdictional hook. Jurisdictional hooks, CAAF determined, don’t count when you’re trying to figure out what the offense is for purposes of a double jeopardy analysis.

The Supreme Court’s holding in Grafton
In 1904, a general court-martial convened in the Philippines acquitted Army private Homer Grafton of murder. He was retried and convicted in a federal civilian court. Grafton v. United States, 206 U.S. at 340-41. Writing 25 years before Blockburger, the Court declined to create a "rule by which every conceivable case must be solved." Rather, it was sufficient for that Court’s purposes to find that a soldier acquitted by a military court proceeding under the authority of the United States could not be tried for the same offense in a territorial court. Id. at 755.
CAAF didn’t quite say it was bound by Grafton. Rather, Blockburger’s elements test ought to be interpreted in light of the Supreme Court’s earlier holding.

Remedy
CAAF disagreed with ACCA’s assessment that any remedy owed the appellant had been satisfied when the district court dismissed the duplicative possession count rather than sentence him for it. Double jeopardy protects against multiple prosecutions—not just multiple convictions or multiple punishments. Dismissal of the specification, for which appellant was held to answer after pleading guilty in district court, was the appropriate remedy.

Distribution specifications
Rice had also been convicted at court-martial of distributing child pornography. But was the district court conviction for possession a lesser-included offense of the distribution specification? ACCA had declined say, insisting that since the district court dismissed the charge after the court-martial, Rice had his remedy. Again, this remedy did not address the specter of multiple prosecutions. CAAF found it was unable to determine the fact-intensive LIO question on the record, and remanded the specification to ACCA.
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Dissent
Judge Maggs dissented. He would have applied the Blockburger test strictly, including jurisdictional elements and terminal elements in the analysis. He cited precedent from both from Supreme Court and CAAF in which both courts included jurisdictional elements in their Blockburger analyses. While Blockburger can produce "controversial results," the remedy must come from Congress. Slip op. at 11 (Maggs, J., dissenting).

--Marcus Fulton