                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                No. 11-30297
         Plaintiff-Appellant,
                                         D.C. No.
             v.                       3:11-cr-00035-
                                          HRH-1
CHRISTOPHER CARL STOLTZ,
        Defendant-Appellee.                OPINION


      Appeal from the United States District Court
               for the District of Alaska
   H. Russel Holland, Senior District Judge, Presiding

               Argued and Submitted
        February 8, 2013—Seattle, Washington

                    Filed June 27, 2013

  Before: Raymond C. Fisher, Ronald M. Gould and
           Richard A. Paez, Circuit Judges.

                  Opinion by Judge Fisher
2                  UNITED STATES V . STOLTZ

                           SUMMARY*


                           Criminal Law

   The panel reversed the district court’s order dismissing on
double jeopardy grounds an indictment charging with
possession of child pornography a servicemember who had
previously received nonjudicial punishment (NJP) for the
same offense under the Uniform Code of Military Justice.

     The panel held that the district court erred in concluding
that the civilian criminal prosecution would raise double
jeopardy concerns, where the defendant has never previously
been criminal charged with possession of child pornography
either in civilian court or by court-martial. The panel
explained that the inquiry for the Double Jeopardy Clause is
whether the defendant actually was previously placed in
jeopardy, not whether he might have been placed in jeopardy
if other procedures had been followed.

    The panel also held that assuming without deciding that
there was a due process violation arising from the Coast
Guard’s imposition of nonjudicial punishment without first
obtaining a valid waiver of the defendant’s right to reject
nonjudicial punishment in favor of a court-martial, that
alleged violation occurred as part of the nonjudicial
punishment proceedings and is insufficiently related to this
criminal prosecution to warrant dismissal of the indictment.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V . STOLTZ                     3

                         COUNSEL

Karen L. Loeffler, United States Attorney, District of Alaska,
Kyle G. French (argued), Assistant United States Attorney,
District of Alaska, Anchorage, Alaska, for Plaintiff-
Appellant.

Eric P. Lampel (argued) and Frances E. Clarke, The Lampel
Firm, P.C., Irvine, California, for Defendant-Appellee.


                          OPINION

FISHER, Circuit Judge:

    It is well settled that, consistent with the Double Jeopardy
Clause, the government may prosecute a member of the
armed forces in a civilian criminal court even though he has
previously received nonjudicial punishment for the same
offense under Article 15 of the Uniform Code of Military
Justice, 10 U.S.C. § 815. See United States v. Reveles, 660
F.3d 1138, 1146 (9th Cir. 2011). It is also well settled that a
general or special court-martial precludes a subsequent
civilian criminal prosecution for the same offense. See
Grafton v. United States, 206 U.S. 333, 345–48 (1907).

    Here we must decide whether the Double Jeopardy Clause
prohibits civilian criminal prosecution of a servicemember
who previously received nonjudicial punishment without
being informed of or waiving his statutory right to reject such
punishment and demand a court-martial instead. See
10 U.S.C. § 815(a). The district court, concluding that such
a scenario would raise double jeopardy concerns, dismissed
the indictment charging defendant Christopher Carl Stoltz
4                UNITED STATES V . STOLTZ

with possession of child pornography. We conclude that this
was error. Regardless of any alleged statutory procedural
violation, Stoltz has never previously been criminally charged
with possession of child pornography either in civilian court
or by court-martial. The inquiry for the Double Jeopardy
Clause is whether the defendant actually was previously
placed in jeopardy, not whether he might have been placed in
jeopardy if other procedures had been followed. We
therefore hold that this prosecution does not violate the
Double Jeopardy Clause. We also reject Stoltz’s alternative
argument that due process considerations require dismissal of
the indictment. Accordingly, we reverse and remand for
further proceedings.

       I. MILITARY AND CIVILIAN JUSTICE

    A brief overview of the interplay between military and
civilian justice is necessary before turning to the facts of this
case. The Uniform Code of Military Justice (UCMJ)
provides that commanding officers can punish
servicemembers through either courts-martial (either general,
special or summary courts-martial) or nonjudicial punishment
(NJP) proceedings. See 10 U.S.C. § 815 (nonjudicial
punishment); id. § 816 (courts-martial). In the United States
Coast Guard, NJP proceedings are called a “Captain’s Mast.”
See Reveles, 660 F.3d at 1141.

    “General and special courts-martial resemble judicial
proceedings,” Middendorf v. Henry, 425 U.S. 25, 31 (1976),
with punishments ranging up to and including capital
punishment. See 10 U.S.C. §§ 816, 825a, 831, 838. NJP, by
contrast, is solely a disciplinary measure, is not criminal in
nature and is intended for “minor offenses.” Id. § 815; see
also Middendorf, 425 U.S. at 31–32 (characterizing NJP as
                 UNITED STATES V . STOLTZ                    5

“an administrative method of dealing with the most minor
offenses”). Possible punishments under NJP include arrest in
quarters or correctional custody for not more than 30 days,
forfeiture of not more than half a month’s pay per month for
two months, reduction in rank and extra duties. See 10
U.S.C. § 815; see also Middendorf, 425 U.S. at 32 n.9.

    If a servicemember is tried by general or special court-
martial, the Double Jeopardy Clause of the Fifth Amendment
bars a subsequent civilian prosecution for the same offense.
See Grafton, 206 U.S. at 345–48. But NJP is not considered
a criminal proceeding, so imposition and enforcement of NJP
bars neither a subsequent court-martial nor a subsequent
civilian prosecution for the same offense. See 10 U.S.C.
§ 815(f); Reveles, 660 F.3d at 1142–43, 1146.

    Under the standard rule, servicemembers facing NJP can
opt to reject the NJP and demand trial by court-martial in lieu
of the NJP. “[E]xcept in the case of a member attached to or
embarked in a vessel, punishment may not be imposed upon
any member of the armed forces under this article if the
member has, before the imposition of such punishment,
demanded trial by court-martial in lieu of such punishment.”
10 U.S.C. § 815(a). In truth, the servicemember cannot
technically “demand” a court-martial, because the accused
does not have the authority to bring charges to initiate a
court-martial. See 10 U.S.C. §§ 822, 823. Thus, despite the
statutory language, it is more accurate to say that
servicemembers generally have the right to reject the NJP in
favor of a court-martial; if the servicemember invokes this
right and rejects NJP, then the decision of whether to proceed
with a court-martial rests with the proper convening
authorities.
6                       UNITED STATES V . STOLTZ

    The right to reject NJP in favor of a court-martial is
subject to an exception arguably pertinent to this case, known
as the “vessel exception.” If the servicemember is “attached
to or embarked in a vessel,” he does not have the right to
reject NJP. 10 U.S.C. § 815(a).1 But if the vessel exception
does not apply, the servicemember faced with NJP must be
informed of his right to reject NJP in favor of a court-martial,
and NJP cannot be imposed unless the servicemember
voluntarily, knowingly and intelligently waives that right in
writing. See Fairchild v. Lehman, 814 F.2d 1555, 1559 (Fed.
Cir. 1987) (quoting United States v. Booker, 5 M.J. 238, 243
n.20 (C.M.A. 1977)).

                    II. FACTUAL BACKGROUND

    Beginning in June 2002, Stoltz was an active duty enlisted
member of the United States Coast Guard. In January 2007,
the Coast Guard assigned him to the Coast Guard cutter Alex
Haley as Electrician’s Mate Third Class.2 On October 7,
2008, while the Alex Haley was moored at Nome, Alaska, for
a routine port call, a shipmate observed Stoltz aboard the
cutter viewing on his laptop movies of children performing
sexual acts. The next morning, the shipmate reported what he
had seen to his superiors. During the Alex Haley’s next
routine port call, Stoltz met with a Coast Guard Investigative
Service Special Agent, waived his right against self-


    1
     The relevant date for whether the servicemember is attached to or
embarked in a vessel is the date the punishment is imposed, not the date
of the offense. See Manual for Courts-Martial, United States, Part V ¶ 3
(2012), available at http://www.loc.gov/rr/frd/Military_Law/pdf/
MCM-2012.pdf.

    2
        A “cutter” is a small, lightly armed, Coast Guard ship.
                    UNITED STATES V . STOLTZ                           7

incrimination and admitted possessing child pornography
both aboard the Alex Haley and at his home in Kodiak,
Alaska.3

    To avoid precluding civilian criminal charges, the Alex
Haley’s commanding officer, Commander Kevin Jones, and
executive officer, Lieutenant Commander Anthony Williams,
opted not to court-martial Stoltz. But when seven months
passed and no civilian criminal charges had been filed,
Williams decided to impose NJP on Stoltz so that the crew
could see that Stoltz had not escaped punishment for his
offense and so that Stoltz would not receive an honorable
discharge. Jones held a Captain’s Mast on May 6, 2009. At
the Captain’s Mast, Jones charged Stoltz with viewing illicit
material aboard the ship, in violation of UCMJ Article 134,
10 U.S.C. § 934, and Stoltz admitted the charge. Jones
imposed punishment of a one-step reduction in Stoltz’s rank,
45 days’ extra duty, 45 days’ restriction to the Alex Haley and
an $1,800 fine. The Coast Guard did not offer to renew
Stoltz’s service commitment and separated him with General
Under Honorable Conditions in June 2009.

    At no point between October 2008 and May 2009 was
Stoltz informed that he could reject NJP and demand a court-
martial instead. Nor did he ever waive his right under § 815
to demand a court-martial in lieu of NJP proceedings.

    In April 2011, a federal grand jury in Alaska indicted
Stoltz, charging him with one count of possessing child
pornography in violation of 18 U.S.C. § 2252(a)(4)(b), (b)(2).


  3
    Stoltz was never charged in either military or civilian court for the
child pornography found at his home. All of the relevant charges
concerned the child pornography he had aboard the Alex Haley.
8                   UNITED STATES V . STOLTZ

Stoltz moved to dismiss the indictment on double jeopardy
grounds.4 The district court granted the motion, concluding
that the vessel exception did not apply and Stoltz therefore
should have been given the opportunity to reject NJP and
demand a court-martial. The court further concluded that
because Stoltz had not been made aware of his right to
demand a court-martial, the United States could not charge
him for the same crime in civilian court consistent with the
Double Jeopardy Clause. The United States appealed. On
appeal, Stoltz argues that we should affirm the dismissal of
his indictment on either double jeopardy or due process
grounds.

               III. STANDARD OF REVIEW

    We review de novo the district court’s dismissal of an
indictment based on violations of constitutional rights. See
United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003)
(double jeopardy); United States v. Reveles-Espinoza, 522
F.3d 1044, 1047 (9th Cir. 2008) (due process).

                  IV. VESSEL EXCEPTION

    The parties dispute whether the vessel exception applied
to the Coast Guard’s imposition of NJP against Stoltz. We
need not resolve this debate, however, because even assuming
Stoltz is correct that the vessel exception did not apply here,
dismissal of the indictment is not warranted. Thus, we
assume without deciding that the vessel exception did not
apply and therefore that the Coast Guard inappropriately
imposed NJP on Stoltz without informing him of his right to

  4
    The magistrate judge, after oral argument and an evidentiary hearing,
recommended that the motion be denied.
                 UNITED STATES V . STOLTZ                     9

reject NJP in favor of a court-martial or obtaining a written
waiver of that right.

                V. DOUBLE JEOPARDY

    The Double Jeopardy Clause of the Fifth Amendment
provides 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. Double jeopardy bars Stoltz’s prosecution only if
he was previously placed in jeopardy for the same child
pornography offense.         “[T]he ‘constitutional policies
underpinning the Fifth Amendment’s guarantee’ are not
implicated before that point in the proceedings at which
‘jeopardy attaches.’” Serfass v. United States, 420 U.S. 377,
390–91 (1975) (quoting United States v. Jorn, 400 U.S. 470,
480 (1971)); see also Will v. Hallock, 546 U.S. 345, 354 n.1
(2006). Jeopardy attaches only when a jury is empaneled and
sworn, or in the case of a non-jury trial, when the court begins
to hear evidence. See Serfass, 420 U.S. at 388 (citing
Downum v. United States, 372 U.S. 734 (1963), and Illinois
v. Sumerville, 410 U.S. 458 (1973)). The Supreme Court “has
consistently adhered to the view that jeopardy does not attach,
and the constitutional prohibition [on double jeopardy] can
have no application, until a defendant is ‘put to trial before
the trier of facts, whether the trier be a jury or a judge.’”
Serfass, 420 U.S. at 388 (quoting Jorn, 400 U.S. at 479).

    We can quickly dispose of Stoltz’s double jeopardy
argument because both sides acknowledge that NJP is
noncriminal and that Stoltz has never previously been
charged criminally for possession of child pornography. See
Reveles, 660 F.3d at 1146 (holding that “NJP . . . is
noncriminal in nature” and thus the government’s prosecution
of a servicemember who had previously been punished by
10                   UNITED STATES V . STOLTZ

NJP for the same offense was not barred by the Double
Jeopardy Clause); see also Hudson v. United States, 522 U.S.
93, 98–99 (1997) (holding that the Double Jeopardy Clause
precludes only successive criminal punishments, but “does
not prohibit the imposition of all additional sanctions that
could, in common parlance, be described as punishment”
(internal quotation marks omitted)). Stoltz cannot evade
criminal prosecution based on what might have occurred if
the Coast Guard had given him the chance to demand a court-
martial as required by statute. What matters is whether Stoltz
was actually court-martialed. He was not. Stoltz’s novel
theory – that the Double Jeopardy Clause prohibits criminal
prosecution if the defendant could have been, but was not,
criminally charged for the same conduct in a prior, separate
action – lacks any legal support and cannot be squared with
the Supreme Court authority concerning when jeopardy
attaches.5

    Until indicted in this case, Stoltz was never charged in a
criminal proceeding for possession of child pornography,
either in a court-martial or civilian criminal court. The
Double Jeopardy Clause is thus no impediment to this
prosecution. Dismissing the indictment would not merely
ensure that Stoltz is not criminally charged twice for the same
offense; it would ensure that he is not criminally charged at
all. The Coast Guard’s imposition of NJP without obtaining

 5
   Stoltz’s argument also improperly assumes that if he had exercised his
right to demand a court-martial, he necessarily would have been court-
martialed. As noted, servicemembers cannot compel a court-martial.
Rather, a servicemember has the right to reject NJP in favor of a court-
martial, but the discretion to convene a court-martial still rests with those
individuals listed in 10 U.S.C. §§ 822 and 823, not the accused
servicemember. In substance, the servicemember has the right to demand
that he either be court-martialed or receive no military punishment.
                 UNITED STATES V . STOLTZ                     11

a waiver of Stoltz’s right to reject NJP in favor of a court-
martial arguably implicates due process concerns as discussed
in the next section, but it does not implicate double jeopardy.

                    VI. DUE PROCESS

    Because we assume that the vessel exception did not
apply, the Coast Guard was not allowed to impose NJP on
Stoltz without first obtaining a valid waiver of his right to
reject NJP in favor of a court-martial. See 10 U.S.C.
§ 815(a); Fairchild, 814 F.2d at 1559 (holding that such
waiver must be voluntary, knowing, intelligent and in
writing). Stoltz argues that this statutory violation also
amounts to a constitutional due process violation. We assume
without deciding that he is correct. See Booker, 5 M.J. at 243
(“The consequences of a decision to accept [NJP] . . . involve
due process considerations.”).

    Even so, the due process violation did not occur in the
context of the current prosecution, but as part of the NJP
proceedings. We are not persuaded that the alleged due
process violation is sufficiently related to the instant criminal
proceeding such that Stoltz is entitled to a remedy in this
case. Cf. R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d
906, 924–25 (9th Cir. 2005) (recognizing that the court need
not concern itself with protecting against alleged injuries
occurring in another court). If Stoltz suffered a constitutional
violation during the NJP proceedings, that is where his
remedy would lie. There is no evidence that the Coast
Guard’s failure to obtain a waiver in the NJP proceeding had
any connection to the government’s decision to initiate the
civilian criminal proceeding that is before us.
12                  UNITED STATES V . STOLTZ

    Even assuming, however, that the NJP and this civilian
prosecution were sufficiently related, dismissing the
indictment would not be appropriate. “[R]emedies should be
tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing
interests.” United States v. Morrison, 449 U.S. 361, 364
(1981) (holding that dismissing the indictment was not the
proper remedy for the government’s interference with the
defendant’s relationship with counsel). “Broadly speaking,
due process violations are remedied by providing the
aggrieved party the process he or she was deprived (or an
equivalent).” Lara-Torres v. Ashcroft, 383 F.3d 968, 975 (9th
Cir. 2004). The Coast Guard allegedly violated Stoltz’s
statutory right to reject NJP in favor of a court-martial; he has
no statutory right to escape criminal prosecution altogether.
Thus, if any violation occurred, the properly tailored remedy
would be one that vacates the NJP, not one that forbids any
criminal prosecution.

    Indeed, such a remedy exists to rectify the improper
imposition of NJP. Pursuant to 10 U.S.C. § 1552, Stoltz
could apply to the Board for Correction of Military Records
(BCMR), arguing that he was subjected to NJP without the
opportunity to exercise his right to demand a court-martial.
See § 1552(a)(1) (providing that the BCMR “may correct any
military record . . . when . . . necessary to correct an error or
remove an injustice”).6 The BCMR has the authority to


  6
   Should there be an issue of the timeliness of such an application, the
BCMR may consider whether it would be “in the interest of justice” to
excuse the delay given the circumstances of this case and the uncertainties
of Stoltz’s legal rights and remedies. See § 1552(b) (permitting
servicemembers to petition the BCMR more than three years after
discovering the alleged error “in the interest of justice”).
                     UNITED STATES V . STOLTZ                             13

refund his fines and correct his military record if it
determines that imposition of NJP on Stoltz was improper.
See § 1552(a)(1), (c)(1). If Stoltz receives an unfavorable
ruling from the BCMR, he could appeal that ruling to an
Article III court. See, e.g., Fairchild, 814 F.2d at 1557–60.7
Thus, the district court erred in resorting to dismissal of the
criminal charges here to rectify errors in the NJP proceedings.

                        VII. CONCLUSION

    The Double Jeopardy Clause is intended to prevent
successive attempts to convict a defendant of the same
offense. Because Stoltz has never been criminally charged
with possessing child pornography, the Double Jeopardy
Clause does not bar this prosecution. Stoltz also cannot avoid
criminal prosecution altogether based on the alleged violation
of his right to reject NJP in favor of a court-martial. That
violation – assuming it was one – occurred in the context of
the NJP, not as part of this criminal prosecution. There is no
reason to dismiss this criminal indictment to remedy a
procedural violation that occurred in another, distinct
proceeding. It was therefore error to dismiss the indictment.

     REVERSED.




 7
    Stoltz protests that he is not seeking correction of his military records,
as the plaintiff in Fairchild was; rather, he seeks dismissal of his criminal
charge. It is not for Stoltz to decide the proper remedy for the alleged
violation. A remedy that exempts him from all criminal punishment
would “infringe on competing interests,” Morrison, 449 U.S. at 364,
because it would allow Stoltz to escape with only 45 days’ restriction to
the ship, when the federal sentencing guidelines provide for substantially
longer sentences. See U.S.S.G. § 2G2.2.
