This opinion is subject to revision before publication UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES _______________ UNITED STATES Appellee v. Robert J. RICE, Colonel United States Army, Appellant No. 19-0178 Crim. App. No. 20160695 Argued October 16, 2019—Decided May 21, 2020 Military Judges: Tyesha L. Smith and Andrew J. Glass For Appellant: Stephen I. Vladeck, Esq. (argued); Lieu- tenant Colonel Christopher Daniel Carrier and Cap- tain Zachary Gray (on brief). For Appellee: Major Catharine M. Parnell (argued); Colonel Steven P. Haight, Lieutenant Colonel Wayne H. Williams, and Captain Allison L. Rowley (on brief). Judge RYAN delivered the opinion of the Court, in which Chief Judge STUCKY and Judges OHLSON and SPARKS, joined. Judge MAGGS filed a separate dis- senting opinion. _______________ Judge RYAN delivered the opinion of the Court.1 Appellant possessed and distributed child pornography. The U.S. Attorney’s Office for the Middle District of Pennsyl- vania thus prosecuted Appellant for violating 18 U.S.C. § 2252A (2006 & Supp. II 2008). A military convening author- ity subsequently prosecuted Appellant in the military justice system for this same conduct under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006). This case thus presents the following issues: First, can the federal sov- ereign use two court systems, civilian and military, to bring 1 We heard oral argument in this case at J. Reuben Clark Law School at Brigham Young University, Provo, Utah, as part of the Court’s Project Outreach. See United States v. Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice was developed as part of a public awareness program to demonstrate the operation of a fed- eral court of appeals and the military justice system. United States v. Rice, No. 19-0178/AR Opinion of the Court successive prosecutions for precisely the same conduct, where the only element the federal civilian statute includes that the military statute does not is jurisdictional? Second, what is the remedy for a successive prosecution? We conclude that the Double Jeopardy Clause bars such prosecutorial practices, Grafton v. United States, 206 U.S. 333 (1907), and that the remedy here is dismissal of the two possession specifications that were tried at the successive prosecution. We then re- mand the single distribution specification for further review by the lower court. I. Facts and Procedural History In February 2013, Appellant’s wife contacted local civilian law enforcement to report that she believed her husband was viewing and distributing child pornography. The subsequent investigation uncovered 10,000 images and videos of child pornography from several of Appellant’s electronic devices, including a Hewlett-Packard (HP) laptop and an external hard drive. A digital forensic examination of these devices re- vealed that Appellant electronically shared some of these im- ages with other internet users via Yahoo! Messenger. The investigation led to two parallel prosecutions—one ci- vilian and one military. On May 14, 2014, Appellant was in- dicted in the United States District Court for the Middle Dis- trict of Pennsylvania for violations of 18 U.S.C. § 2252A(a)(2), (5). Count One ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals