USA v. Robert Revele

Filing

FILED OPINION (JOHN T. NOONAN, MILAN D. SMITH, JR. and ANDREW J. GUILFORD) AFFIRMED. Judge: AJG Authoring. FILED AND ENTERED JUDGMENT. [7938528]

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 1 of 17

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT REVELES,
Defendant-Appellant.





No. 10-30313
D.C. No.
CR 09-5883
OPINION

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
August 3, 2011—Seattle, Washington
Filed October 24, 2011
Before: John T. Noonan and Milan D. Smith, Jr.,
Circuit Judges, and Andrew J. Guilford,* District Judge.
Opinion by Judge Guilford

*The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.

19251

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 2 of 17

19253

COUNSEL
Michael Filipovic, First Assistant Public Defender, Seattle,
Washington; Ulrike B. Connelly, Perkins Coie LLP, Seattle,
Washington, for the defendant-appellant.
Jenny A. Durkan, United States Attorney, Barbara J. Sievers,
Assistant U.S. Attorney, Seattle, Washington, for the plaintiffappellee.

Case: 10-30313

19254

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 3 of 17

UNITED STATES v. REVELES

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.

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 4 of 17

19255

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
[1] 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 (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).

Case: 10-30313

19256

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 5 of 17

UNITED STATES v. REVELES

[2] 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 (1976). Unlike courts-martial, which resemble
judicial proceedings, NJP “is an administrative method of
dealing with the most minor offenses.” Id. at 31-32 (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.
[3] 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 tra-

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 6 of 17

19257

ditional criminal proceedings. Id. (emphasis added); but see
State v. Ivie, 961 P.2d 941, 945 (Wash. 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.
[4] 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) (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).
[5] 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 courtmartial 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

Case: 10-30313

19258

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 7 of 17

UNITED STATES v. REVELES

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.
[6] 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

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 8 of 17

19259

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, 58 P.3d 643, 646 (Haw. 2002); but see United
States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga,
49 M.J. at 12; Ivie, 961 P.2d at 945.
Reveles argues that Volpe and Arriaga expose a split
among federal courts concerning the categorization of NJP.
But Volpe is distinguishable because the magistrate judge in
that case did not conduct a Hudson/Rivera analysis when considering defendant’s Double Jeopardy arguments. Volpe, 986
F. Supp. at 124-26. And Arriaga does not support Reveles’
argument because that case involved NJP in an obstruction of
justice context. Although Ivie is largely on point, it is a statelaw case with a dissent that conforms to the majority of federal case law on this issue. Ivie, 961 P.2d at 948. Reveles’
contention that federal and military courts are split on this
issue is unpersuasive.
Reveles makes several other arguments seeking to show
that Congress actually intended NJP to be criminal. Reveles
argues, for example, that the MCM prohibits internal double
punishment, and that NJP may not be imposed for the same
offense more than once. See MCM, pt. V, ¶ 1f.(1). Reveles
also argues that the MCM prohibits the imposition of NJP for
an offense tried by a federal court. See id., pt. V, ¶ 1f.(5).
But Reveles overstates his arguments concerning multiple
prosecutions and punishments. Although MCM regulations
generally forbid imposing NJP on a servicemember after he
has been prosecuted civilly, they do not preclude prosecution
in a civilian court after NJP has been imposed. See MCM, pt.
V, ¶ 1f.(5). Further, in the military setting, “nonjudicial punishment for an offense other than a minor offense (even
though thought by the commander to be minor) is not a bar
to trial by court-martial for the same offense.” MCM, pt. V,
¶ 1e (citing R.C.M. 907(b)(2)(D)(iv)) (but recognizing that
the MCM allows an accused at a court-martial to show previ-

Case: 10-30313

19260

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 9 of 17

UNITED STATES v. REVELES

ous imposition of NJP to mitigate a possible court-martial
sentence).
Reveles separately argues that NJP proceedings contain due
process safeguards traditionally associated with criminal proceedings. Reveles is correct that some of these safeguards
exist, including the right of the accused to receive notice of
charges and to be present at NJP proceedings. But the presence of these procedural safeguards does not negate Congress’ intent to create an “essential and prompt means of
maintaining good order and discipline” in the military. MCM,
pt. V, ¶ 1c. In fact, other rules typically included in criminal
proceedings, such as formal rules of evidence, are absent from
NJP proceedings. MCM, pt. V, ¶ 4c.(3). Moreover, at least
one military branch — the Navy — uses a “preponderance of
the evidence” standard rather than the “beyond a reasonable
doubt” standard that is the hallmark of criminal trials. Turner
v. Dep’t of Navy, 325 F.3d 310, 313 (D.C. Cir. 2003); JAGMAN § 0110(b). The “preponderance of the evidence” standard indicates that NJP proceedings were not intended to be
criminal.
[7] Because we hold that Congress intended NJP to be
noncriminal in nature, we now consider whether NJP is “so
punitive either in purpose or effect as to transform what was
clearly intended as a civil remedy into a criminal penalty.”
Rivera, 194 F.3d at 1068.
2.

WHETHER THE STATUTE IS SO PUNITIVE
THAT IT TRANSFORMS THE CIVIL REMEDY
INTO A CRIMINAL PENALTY

Reveles argues that NJP is so punitive that it has been
transformed into a criminal penalty. Rivera, 194 F.3d at 1068.
This argument fails.
To determine whether a remedy denominated “civil” is
actually a punitive criminal penalty subject to the prohibition

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 10 of 17

19261

of double jeopardy, a court should consider whether the sanction
(1) involves an affirmative disability or restraint; (2)
has historically been regarded as punishment; (3)
requires a finding of scienter; (4) will promote retribution and deterrence; (5) applies to behavior that is
already a crime; (6) can have an alternative purpose;
and (7) appears excessive in relation to the alternative purpose.
Id. (citing Hudson, 522 U.S. at 99). “These factors must be
considered in relation to the statute on its face, and only the
clearest proof will suffice to override legislative intent and
transform what has been denominated a civil remedy into a
criminal penalty.” Id. (citing Hudson, 522 U.S. at 99) (emphasis added). With this very high burden, even a showing that
most of the relevant factors weigh in favor of considering a
punishment criminal in nature may be insufficient to transform it into a criminal punishment.
We now review the relevant factors as they apply to NJP.
2.1

Whether NJP Involves an Affirmative Disability or
Restraint

A punishment that involves imprisonment or another form
of restraint is more likely to be criminal, rather than civil, in
nature. See Hudson, 522 U.S. at 104; Trogden, 476 F. Supp.
2d at 569-70.
NJP includes the possibility of 30 days “correctional custody” under certain circumstances. 10 U.S.C. § 815(b)(2)(B).
Correctional custody may include confinement at hard labor,
punishment the Supreme Court has recognized as “the military equivalent of imprisonment.” Middendorf, 425 U.S. at
35. Thus, although Reveles was not ultimately subjected to
such punishment, NJP may “involve[ ] an affirmative disabil-

Case: 10-30313

19262

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 11 of 17

UNITED STATES v. REVELES

ity or restraint.” Rivera, 194 F.3d at 1068 (citing Hudson, 522
U.S. at 99).
[8] But as the Court stated in Middendorf, “the fact that
confinement will be imposed in the first instance as a result
of [a] proceeding [does not] make it a ‘criminal prosecution.’ ” Middendorf, 425 U.S. at 35-37 (citing various cases
and noting differences between the adversarial nature of criminal proceedings and noncriminal proceedings). This is especially true in the NJP setting where the maximum correctional
custody term is limited to 30 days.
This factor favors considering NJP to be criminal in nature.
2.2

Whether NJP Has Historically Been Regarded As
Punishment

If a sanction has historically been regarded as punishment,
it is more likely that the sanction is criminal, rather than civil,
in nature. See Hudson, 522 U.S. at 104; Trogden, 476 F.
Supp. 2d at 570.
NJP has historically been regarded as punishment. NJP
originates from proceedings where Navy commanders could
“correct those who are guilty” of rule infractions using a
“Captain’s Mast.” S. Rep. No. 87-1911, at 2 (1962). Harsh
punishment was available under those Captain’s Mast proceedings, including the possibility of lashing, flogging, being
shot out of a cannon, and keelhauling.
Modern-day NJP also has been historically regarded as
punishment. As noted, NJP includes the possibility of 30 days
confinement at hard labor. See 10 U.S.C. § 815(b). And
although the Captain’s Mast punishments were certainly more
severe than those administered under modern-day NJP, the
fact remains that NJPs are still punishments. See Middendorf,
425 U.S. at 35-37.

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 12 of 17

19263

This factor favors considering NJP to be criminal in nature.
2.3

Whether NJP Requires a Finding of Scienter

“[S]cienter . . . is a traditional requirement of criminal liability . . . .” Noriega-Perez v. United States, 179 F.3d 1166,
1173 (9th Cir. 1999). Thus, if a punishment requires a finding
of scienter, it is more likely to be criminal, rather than civil,
in nature. Id.
NJP does not require a finding of scienter. Although NJP
may result from offenses that include a scienter requirement,
a commanding officer may impose NJP regardless of the
defendant’s state of mind. See 10 U.S.C. § 815; MCM, pt. IV,
¶¶ 16 (failure to obey order or regulation), 59 (conduct unbecoming an officer and gentleman). Reveles’ particular situation confirms this, since a finding of intent was apparently not
required to issue NJP for his infraction.
This factor weighs against considering NJP to be criminal
in nature.
2.4

Whether NJP Promotes Retribution and
Deterrence

Punishment that furthers the objectives of retribution and
deterrence is more likely to be criminal, rather than civil, in
nature. See Hudson, 522 U.S. at 105; Trogden, 476 F. Supp.
2d at 570.
Although NJP likely deters certain misconduct, that alone
does not render NJP criminal in nature. As the Supreme Court
stated in Hudson, deterrence “may serve civil as well as criminal goals.” Hudson, 522 U.S. at 105 (citing United States v.
Ursery, 518 U.S. 267, 292 (1996)). More importantly, as
“disciplinary” sanctions for “minor” offenses, NJP should not
be viewed as promoting retribution. See 10 U.S.C. § 815(b).

Case: 10-30313

19264

10/24/2011

ID: 7938528

DktEntry: 18-1

Page: 13 of 17

UNITED STATES v. REVELES

This factor is neutral.
2.5

Whether NJP Applies to Behavior That Is Already
a Crime

If punishment applies to criminal behavior, it follows that
it is more likely that the punishment is criminal, rather than
civil, in nature. See Hudson, 522 U.S. at 105; Trogden, 476
F. Supp. 2d at 570.
NJP may be imposed for many acts and omissions included
in the MCM punitive articles that are also civilian crimes. See,
e.g., MCM, pt. IV, ¶¶ 54 (assault), 55 (burglary), 57 (perjury). But NJP may also be imposed for many minor offenses
that are not civilian crimes. See, e.g., id., pt. IV, ¶ 13 (disrespect toward a superior commissioned officer); see also Parker v. Levy, 417 U.S. 733, 749-51 (1974) (discussing
differences between civilian and military punishments and
noting that various forms of conduct punishable in the military do not have corresponding civilian crimes). Thus,
although NJP may be administered for behavior that is
already a crime, criminal behavior is not a requirement for the
imposition of NJP.
This factor is neutral.
2.6

Whether NJP Has an Alternative Purpose

Statutes authorizing punishments that have purposes other
than furthering the traditional criminal justice objectives of
deterrence and retribution are less likely to be criminal in
nature. See Hudson, 522 U.S. at 105; Trogden, 476 F. Supp.
2d at 570-71.
As noted, “[n]onjudicial punishment provides commanders
with an essential and prompt means of maintaining good
order and discipline and also promotes positive behavior
changes in servicemembers without the stigma of a court-

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

Page: 14 of 17

19265

martial conviction.” MCM, pt. V, ¶ 1c. Thus, a primary purpose of NJP is to maintain military order, a purpose distinct
from those underlying traditional criminal punishment.
Indeed, military “discipline is not achieved exclusively or
even primarily through use or threat of the military criminal
law process, the court-martial.” Gammons, 51 M.J. at 178.
“Commanders use a combination of tools to maintain discipline, including leadership by example, training, corrective
measures, administrative actions authorized by applicable regulations, and NJP . . . .” Id.
This factor weighs against considering NJP to be criminal
in nature.
2.7

Whether NJP Appears Excessive Compared to Its
Alternative Purpose

Statutes authorizing relatively severe punishments are more
likely to be criminal in nature. See Hudson, 522 U.S. at 105;
Trogden, 476 F. Supp. 2d at 571. Here, it is necessary to compare the severity of NJP with its purpose of maintaining military discipline.
NJP is not excessive relative to this purpose. Congress set
limits on sanctions in the NJP statute, including a maximum
of 30 days confinement at hard labor. A month of confinement is not insignificant, but neither is it excessive when
weighed against the military’s need to maintain strict order
and discipline.
The severity of NJP is especially reasonable, the Government argues, when considered with the military’s mission.
Indeed, the Supreme Court has stated that, when it comes to
military discipline, courts should show deference to the armed
forces because
the rights of men in the armed forces must be conditioned to meet certain overriding demands of disci-

Case: 10-30313

10/24/2011

19266

ID: 7938528

DktEntry: 18-1

Page: 15 of 17

UNITED STATES v. REVELES

pline and duty, and the civil courts are not the
agencies which must determine the precise balance
to be struck in this adjustment. The Framers especially entrusted that task to Congress.
Burns v. Wilson, 346 U.S. 137, 140 (1953); see also Rostker
v. Goldberg, 453 U.S. 57, 70 (1981) (“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.”). Such deference is a relevant factor when determining whether NJP is excessive relative to the
objective it furthers.
This factor weighs against considering NJP to be criminal
in nature.
2.8

Conclusion on Rendering NJP to Be Criminal

[9] Although NJP may result in 30 days of confinement at
hard labor and has historically been regarded as punishment,
most of the factors indicate that NJP is noncriminal in nature.
And when considered together, these factors fall short of the
“clearest proof” necessary to “override legislative intent and
transform what has been denominated a civil remedy into a
criminal penalty.” Rivera, 194 F.3d at 1068 (citing Hudson,
522 U.S. at 99).
3.

STATUTORY ANALYSIS CONCLUSION

[10] Congress intended NJP to be noncriminal, and the
effect of the NJP statute is not sufficiently punitive as to render it a criminal penalty. See Rivera, 194 F.3d at 1068 (citing
Hudson, 522 U.S. at 99). Because NJP is noncriminal in
nature, it does not implicate the Double Jeopardy Clause.

Case: 10-30313

10/24/2011

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

4.

Page: 16 of 17

19267

SUPREME COURT PRECEDENT SUPPORTS A
HOLDING THAT NJP IS NONCRIMINAL IN
NATURE

Although the Supreme Court has not spoken directly on
whether NJP is criminal in nature, it addressed a similar issue
in Middendorf. 425 U.S. at 25. In that case, the Court held
that “even were the Sixth Amendment to be held applicable
to court-martial proceedings, the summary court-martial . . .
was not a ‘criminal prosecution’ within the meaning of that
Amendment.” Id. at 34.
A summary court-martial “occupies a position between
informal nonjudicial disposition under [UCMJ] Art. 15 and
the courtroom-type procedure of general and special courtsmartial.” Id. at 32. By contrast, NJP “is an administrative
method of dealing with the most minor offenses.” Id. at 25.
Summary courts-martial can also result in greater sanctions
than NJP, including “one month’s confinement at hard labor;
45 days’ hard labor without confinement; two months’ restriction to specified limits; reduction to the lowest enlisted pay
grade; and forfeiture of two-thirds pay for one month.” Id. at
33 (citing 10 U.S.C. § 820).
Middendorf concerned the Sixth Amendment right to counsel while this case concerns the Fifth Amendment Double
Jeopardy Clause. Still, Middendorf supports the conclusion
that NJP does not implicate the Double Jeopardy Clause.
Because summary courts-martial do not rise to the level of
criminal proceedings and are more criminal in nature than
NJP, it would defy logic, and the Supreme Court holding in
Middendorf, to characterize NJP as criminal.
CONCLUSION
[11] NJP under 10 U.S.C. § 815 is noncriminal in nature.
Thus, the Government’s criminal prosecution of Reveles was

Case: 10-30313

10/24/2011

19268

ID: 7938528

DktEntry: 18-1

UNITED STATES v. REVELES

not barred by the Double Jeopardy Clause.
AFFIRMED.

Page: 17 of 17