                        UNITED STATES, Appellee

                                    v.

                Richard L. EASTON, First Lieutenant
                        U.S. Army, Appellant

                              No. 12-0053

                       Crim. App. No. 20080640

       United States Court of Appeals for the Armed Forces

                        Argued March 12, 2012

                         Decided June 4, 2012

BAKER, C.J., delivered the opinion of the Court, in which STUCKY
and RYAN, JJ., and COX, S.J., joined. ERDMANN, J., filed a
separate opinion dissenting in part and concurring in part.

                                 Counsel

For Appellant: Captain Meghan M. Poirier (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Imogene M. Jamison, Major
Richard E. Gorini, and Captain E. P. Gilman (on brief).

For Appellee: Captain Bradley M. Endicott (argued); Major Ellen
S. Jennings, Major Amber J. Roach, and Major LaJohnne A. White
(on brief).



Military Judges:    Theresa A. Gallagher and James L. Pohl



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Easton, No. 12-0053/AR


     Chief Judge BAKER delivered the opinion of the Court.

     A military judge sitting as a general court-martial at Fort

Stewart, Georgia, convicted Appellant, contrary to his pleas, of

two specifications of missing movement by design, in violation

of Article 87, Uniform Code of Military Justice (UCMJ), 10

U.S.C. § 887 (2006).   Appellant was sentenced to dismissal and

eighteen months of confinement.   The convening authority reduced

Appellant’s term of confinement to ten months, waived the

automatic forfeiture of all pay and allowances for a period of

six months, and otherwise approved the adjudged sentence.

     On review, the United States Army Court of Criminal Appeals

(CCA) affirmed Appellant’s conviction and sentence.   United

States v. Easton, 70 M.J. 507 (A. Ct. Crim. App. 2011).

     We granted review of the following assigned issue:

     WHETHER THE ARMY COURT ERRED IN HOLDING THE
     APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL
     RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT
     ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY
     JUSTIFIED THE CONVENING AUTHORITY’S DECISION TO
     WITHDRAW CHARGES.

     For the reasons set forth below, we conclude that the CCA

erred when it held that the convening authority’s decision to

withdraw charges was justified by manifest necessity.   The

Government failed to meet the high standard required for

manifest necessity:    trial counsel knew that the video tapes

were unusable but still proceeded to trial; and there is no



                                  2
United States v. Easton, No. 12-0053/AR


indication in the record that the convening authority withdrew

the charges based on manifest necessity.

     Having found that there was no manifest necessity to

withdraw the charges, we must address the constitutionality of

Article 44(c), UCMJ, 10 U.S. § 844(c) (2006).   We hold that, in

regards to members trials, Article 44(c), UCMJ, is

constitutional on its face and as applied to Appellant.   While

the protection against double jeopardy under the Fifth Amendment

applies in the military context, see Wade v. Hunter, 336 U.S.

684, 690 (1949), this does not answer the separate question as

to when double jeopardy attaches.    That question is answered by

Article 44, UCMJ:   it attaches “after the introduction of

evidence.”   While we recognize that this is different than the

Supreme Court’s holding as to when double jeopardy attaches in

the civilian world, see Crist v. Bretz, 437 U.S. 28, 35 (1978)

(“[J]eopardy attaches when the jury is empaneled and sworn.”),

in the military context, the accused does not have the same

protected interest in retaining the panel of his choosing, and

therefore jeopardy does not attach in a court-martial until

evidence is introduced.   The structure and purpose of the UCMJ

and the Manual for Courts-Martial (MCM) also indicate a

different intent on the part of Congress and the President,

respectively.   The decision of the CCA is affirmed.




                                 3
United States v. Easton, No. 12-0053/AR


                          I.   BACKGROUND

A.   Facts

      At the time of his court-martial, Appellant was assigned as

a physician’s assistant in the Third Infantry Division based at

Fort Stewart, Georgia.   He had served about fifteen years on

active duty in the Army as an enlisted member and as a

commissioned officer.

      In March 2007, Appellant’s unit deployed to Iraq as part of

the “surge” of forces authorized by the President.1   Appellant



1
  On January 10, 2007, the President delivered a speech to the
nation describing the need for a surge of forces in Iraq:

      The violence in Iraq, particularly in Baghdad,
      overwhelmed the political gains the Iraqis had made.
      Al Qaeda terrorists and Sunni insurgents recognized
      the mortal danger that Iraq’s elections posed for
      their cause. And they responded with outrageous acts
      of murder aimed at innocent Iraqis.

      . . . .

      On September the 11th, 2001, we saw what a refuge for
      extremists on the other side of the world could bring
      to the streets of our own cities. For the safety of
      our people, America must succeed in Iraq.

      . . . .

      Our past efforts to secure Baghdad failed for two
      principal reasons: There were not enough Iraqi and
      American troops to secure neighborhoods that had been
      cleared of terrorists and insurgents, and there were
      too many restrictions on the troops we did have

      . . . .



                                 4
United States v. Easton, No. 12-0053/AR


was charged with intentionally missing the flight with his unit

to Iraq.   After missing the initial flight, he was ordered to

leave on a flight departing the next day.   Appellant also missed

that flight by design.

     The following month, Appellant was charged with two

specifications of missing movement.   On June 29, 2007, prior to

trial, the military judge ruled that two Government witnesses,

Lieutenant Colonel O., Battalion Commander of the Division

Special Troops Battalion, and Major E., a physician’s assistant,

were unavailable because of their deployment to Iraq and ordered

that they be deposed by videotape.    The depositions were

conducted in Iraq and the tapes returned to the United States.

     On July 16, 2007, the court met, and the military judge

noted that:

     during the recess counsel for both sides reviewed a
     videotaped deposition. Both counsel agreed that the
     tape was useless, that there was no visual image on
     the videotape and that the audio was incomprehensible.
     The government stated that they still desired to
     proceed to trial on Thursday, 19 July 2007.2




     So I’ve committed more than 20,000 additional American
     troops to Iraq.

Address to the Nation on the State of the War in Iraq by
President George W. Bush, 1 Pub. Papers 16-17 (Jan. 10, 2007).
2
  This quote is from the transcript, which is available in
summarized form only.



                                 5
United States v. Easton, No. 12-0053/AR


On the same day, voir dire was conducted and a panel of members

sworn and assembled.    On July 18, 2007, the day opening

statements and introduction of evidence were to begin, the

convening authority withdrew and dismissed the charges and

specifications without prejudice.      No reason for the dismissal

was given at trial and the convening authority’s memorandum does

not provide an explanation.    The parties agree on this fact, but

not on its significance.

       In May 2008, the convening authority re-referred the two

specifications for missing movement.     At trial, Appellant moved

to dismiss the charges arguing that constitutional double

jeopardy applied and that the convening authority had improperly

withdrawn the charges.    The military judge denied the motions.

Subsequently, Appellant was found guilty of two specifications

of missing movement in a judge-alone trial.

B.   CCA Decision

       On appeal to the CCA, Appellant renewed his argument that

his second trial violated the prohibition against double

jeopardy and that Article 44(c), UCMJ, is unconstitutional as

applied to him.     In its opinion, the CCA declined to rule on the

constitutionality of Article 44(c), UCMJ.     Easton, 70 M.J. at

511.   It held that, regardless of whether jeopardy attached at

the first court-martial, “jeopardy did not terminate” because

there was a “manifest necessity” for a new trial.     Id.   The


                                   6
United States v. Easton, No. 12-0053/AR


court also explained that, although trial counsel failed to

secure depositions of the unavailable witnesses, the charges

were not withdrawn by the convening authority for an improper

purpose as prohibited by Rule for Courts-Martial (R.C.M.) 604.3

Id. at 513.

                          II.    DISCUSSION

     “The constitutionality of a statute is a question of law we

review de novo.”   United States v. Medina, 69 M.J. 462, 464

(C.A.A.F. 2011).   We review a military judge’s findings of fact

under a clearly erroneous standard.    United States v. Ayala, 43

M.J. 296, 298 (C.A.A.F. 1995).

     The Fifth Amendment provides that “[n]o person shall . . .

be subject for the same offence to be twice put in jeopardy of



3

     (a) Withdrawal. The convening authority . . . may for any
     reason cause any charges or specifications to be withdrawn
     from a court-martial at any time before findings are
     announced.

     (b) Referral of withdrawn charges. Charges which have
     been withdrawn from a court-martial may be referred to
     another court-martial unless the withdrawal was for an
     improper reason. Charges withdrawn after the
     introduction of evidence on the general issue of guilt
     may be referred to another court-martial only if the
     withdrawal was necessitated by urgent and unforeseen
     military necessity.

     R.C.M. 604. “Improper reasons for withdrawal include an
     intent to interfere with the free exercise by the accused
     of constitutional or codal rights, or with the impartiality
     of a court-martial.” R.C.M. 604 Discussion.

                                   7
United States v. Easton, No. 12-0053/AR


life or limb.”   U.S. Const. amend. V, cl. 2.   The Double

Jeopardy Clause was designed:

      to protect an individual from being subjected to the
      hazards of trial and possible conviction more than
      once for an alleged offense. . . . The underlying
      idea, one that is deeply ingrained in at least the
      Anglo-American system of jurisprudence, is that the
      State with all its resources and power should not be
      allowed to make repeated attempts to convict an
      individual for an alleged offense, thereby subjecting
      him to embarrassment, expense and ordeal and
      compelling him to live in a continuing state of
      anxiety and insecurity, as well as enhancing the
      possibility that even though innocent he may be found
      guilty.

Serfass v. United States, 420 U.S. 377, 387-88 (1975) (omissions

in original) (quoting Green v. United States, 355 U.S. 184, 187-

88 (1957)).

      The Supreme Court has made clear that “jeopardy does not

attach, and the constitutional prohibition 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.’”   Id. at 388

(quoting United States v. Jorn, 400 U.S. 470, 479 (1971)).     For

a civilian nonjury trial, jeopardy attaches when a court begins

to hear evidence.   Id.   In a civilian jury trial, jeopardy

attaches when a jury is empaneled and sworn.    Crist, 437 U.S. at

35.   In holding that this constitutional rule applies not only

to federal jurisdictions but also to the states, the Supreme

Court has stated that this rule is designed “to protect the

interest of an accused in retaining a chosen jury.”   Id.


                                  8
United States v. Easton, No. 12-0053/AR


     In contrast, the UCMJ states that jeopardy attaches when

evidence is introduced.   Article 44, UCMJ, provides:

     (a) No person may, without his consent, be tried a
     second time for the same offense.

     . . . .

     (c) A proceeding which, after the introduction of
     evidence but before a finding, is dismissed or
     terminated by the convening authority or on motion of
     the prosecution for failure of available evidence or
     witnesses without any fault of the accused is a trial
     in the sense of this article.

This is true whether the court-martial is before members or by

military judge alone.   The point at which jeopardy attaches

under the UCMJ thus “does not conform precisely to the Supreme

Court’s decisions that jeopardy attaches in a jury trial when

the jury is sworn, even though no evidence has been presented.”

United States v. Cook, 12 M.J. 448, 452-53 (C.M.A. 1982).4

     In both the military and civilian contexts, once jeopardy

has attached, an accused may not be retried for the same offense

without consent once jeopardy has terminated.5   Richardson v.


4
  However, Cook did not decide the constitutional   issue because
the facts fell “outside the purview of either the   Fifth
Amendment or Article 44(a)” since the accused had   elected to be
tried by military judge alone and no evidence had   been
introduced. Id. at 453.
5
  One scholar explained the meaning of “twice in jeopardy” as
follows:

          Although courts often speak of when jeopardy
     attaches, this attachment metaphor misleads to the
     extent that it implies that there is one key moment

                                 9
United States v. Easton, No. 12-0053/AR

United States, 468 U.S. 317, 325 (1984).    Once double jeopardy

has attached, it precludes retrial under a variety of scenarios

including an acquittal, discharge of the jury in the absence of

manifest necessity, or dismissal of the charges in the absence

of manifest necessity.   It does not preclude subsequent

proceedings, inter alia, where there is “manifest necessity” for

declaring a mistrial or otherwise discharging the jury.    United

States v. Perez, 22 U.S. 579, 580 (1824).

     “Manifest necessity” should not be applied:

     mechanically or without attention to the particular
     problem confronting the trial judge. Indeed, it is
     manifest that the key word “necessity” cannot be
     interpreted literally; instead, contrary to the
     teaching of Webster, we assume that there are degrees
     of necessity and we require a “high degree” before
     concluding that a mistrial is appropriate.

Arizona v. Washington, 434 U.S. 497, 506 (1978) (footnotes

omitted); see also Burtt v. Schick, 23 M.J. 140, 142 (C.M.A.

1986) (citing Arizona, 434 U.S. at 505) (“When trial is

terminated over defense objection . . . the Government has a


     rather than two. Jeopardy is a process -- like any
     other game -- and we thus must ask when it begins and
     when it ends.

     . . . .

     The Double Jeopardy Clause in effect says that for any
     given offense, the government may play the
     adjudication game only once: No person shall be
     “twice put in jeopardy.”

Akhil Reed Amar, Essay, Double Jeopardy Law Made Simple, 106
Yale L.J. 1807, 1838-40 (1997).

                                10
United States v. Easton, No. 12-0053/AR

heavy burden of showing ‘manifest necessity’ for the mistrial in

order to remove the double-jeopardy bar to a second trial.”).

There are two issues before this Court.   First, was the

withdrawal of charges in July 2007 the product of manifest

necessity?   Second, if not, is Article 44(c), UCMJ,

constitutional?

A.   “Manifest Necessity” Requirement

      We first address the CCA’s conclusion that the convening

authority’s decision to withdraw charges was justified by

“manifest necessity.”   The CCA explained that “manifest

necessity” existed to withdraw the charges since it is

“implicit” that “operational considerations drove the convening

authority’s decision to terminate appellant’s first court-

martial,” and there is “no evidence” that the convening

authority withdrew the charges in bad faith.   Thus, “[a]bsent

evidence of bad faith,” the CCA “will not second-guess the

convening authority’s tactical decision to withdraw charges

here.”   Easton, 70 M.J. at 513.

      As noted above, a “high” degree of necessity is required to

meet the manifest necessity standard.   Arizona, 434 U.S. at 506.

“The discretion to discharge the jury before it has reached a

verdict is to be exercised ‘only in very extraordinary and

striking circumstances.’”   Downum v. United States, 372 U.S.

734, 736 (1963).   “The power ought to be used with the greatest


                                   11
United States v. Easton, No. 12-0053/AR

caution, under urgent circumstances, and for very plain and

obvious causes.”   Perez, 22 U.S. at 580.

     The Supreme Court has addressed “manifest necessity” in the

military context on one occasion.    In Wade v. Hunter, decided by

the Supreme Court in 1949 under the Articles of War and before

the enactment of the UCMJ,6 the accused and another soldier were

accused of raping two German women during the Allied advance

through Germany.   336 U.S. 684, 686 (1949).   The initial court-

martial was convened and took testimony but was continued

because two witnesses were sick.     Id. at 686-87.   A week later,

the convening authority dissolved the court-martial before it

could make a decision because, “‘[d]ue to the tactical situation

the distance to the residence of such witnesses has become so

great that the case cannot be completed within a reasonable

time.’”   Id.

     The Court held on these facts that the Fifth Amendment did

not bar the accused’s second trial.    An initial trial may be

discontinued for “manifest necessity” or where failing to

discontinue “would defeat the ends of justice,” and the record

demonstrated that “the tactical situation brought about by a

rapidly advancing army was responsible for withdrawal of the

6
  Act of June 4, 1920, 41 Stat. 759 (repealed 1950). The
Continental Congress enacted the Articles of War in 1775. They
were subsequently substantially revised several times. United
States v. Howe, 17 C.M.A. 165, 170-71, 37 C.M.R. 429, 434-35
(1967).

                                12
United States v. Easton, No. 12-0053/AR

charges from the first court-martial.”    Id. at 690-91.   The

evidence at hand, which must be viewed taking “all the

circumstances into account,” was “enough to show that a

defendant’s valued right to have his trial completed by a

particular tribunal must in some instances be subordinated to

the public’s interest in fair trials designed to end in just

judgments.”   Id. at 689-91.

     In Downum, the Supreme Court expounded on the manifest

necessity standard, holding that a defendant’s trial by a second

jury violated the prohibition against double jeopardy where the

first jury had been sworn and discharged because a prosecution

witness had not been served with a summons and because no other

arrangements had been made to assure the witness’s presence.

372 U.S. at 734-35.   Specifically:

     [t]he day before the case was first called, the
     prosecutor’s assistant checked with the marshal and learned
     that [the witness’s] wife was going to let him know where
     her husband was, if she could find out. No word was
     received from her and no follow-up was made. The
     prosecution allowed the jury to be selected and sworn even
     though one of its key witnesses was absent and had not been
     found.

Id. at 735.

     The Court held that the second trial violated the

prohibition against double jeopardy, though it rejected the

contention that “the absence of witnesses ‘can never justify




                                13
United States v. Easton, No. 12-0053/AR

discontinuance of a trial’” and agreed with the conclusion in

Wade that “[e]ach case must turn on its facts.”    Id. at 737.

     The Government argues this case is governed by Wade.      In

Wade, the witnesses suddenly became unavailable due to

operational necessity.   The facts here are distinguishable.     In

this case it was long known that the witnesses would be

unavailable and provision was made for their absence.    The

military judge accounted for the witnesses’ unavailability --

unlike in Wade -- when he ordered their depositions taken.       In

the end, the absence of testimonial evidence from Lieutenant

Colonel O. and Major E. was caused by a technical failure that

rendered the tapes unusable.    Put simply, the Government was

responsible for taking and providing the depositions, and it

failed to successfully complete this task.   Failing to provide

operable video tapes is not a military exigency.   Even if

military necessity required the taking of depositions in Iraq,

it did not compel the transport of the tapes back to the United

States in unusable condition.   Moreover, the prosecution allowed

the members to be sworn and empaneled, informing the military

judge that “they still desired to proceed to trial on Thursday,

19 July 2007,” even though “[b]oth counsel agreed that the tape

was useless.”   Thus, as in Downum, “[t]he situation presented is




                                 14
United States v. Easton, No. 12-0053/AR

simply one where the [prosecution] entered upon the trial of the

case without sufficient evidence to convict.”7   372 U.S. at 737.

     Finally, there is no indication as to why the convening

authority withdrew the charges, and thus no evidence that the

charges were withdrawn on account of manifest necessity.     The

CCA assumed that the charges were withdrawn because of the

faulty video tapes, but the convening authority did not explain

why the charges were withdrawn.    He merely stated that the

charge “is hereby withdrawn and . . . is dismissed without

prejudice.”   Indeed, at the accused’s second trial, trial

counsel stated that the Government had no direct evidence why

charges were withdrawn in July 2007.   Thus, unlike in Wade, the

convening authority did not explain why charges were withdrawn,

and thus we cannot come to any conclusion as to the presence or

absence of manifest necessity based on the convening authority’s

actions.

     This conclusion is buttressed by the fact that the military

judge neither addressed manifest necessity nor made it the basis

for his ruling.   The military judge merely concluded that

withdrawal and dismissal were proper, explaining “that the

dismissal was for a proper purpose” and that “the unavailability


7
  This behavior also implicates concerns echoed in Downum, 372
U.S. at 736, about the prosecutor’s (or convening authority’s)
power to withdraw charges mid-trial based on an assessment of
the strength of the Government’s case.

                                  15
United States v. Easton, No. 12-0053/AR

of essential witnesses to the case and also the unavailability

of the alternate means and the unwillingness of the trial judge

at the time to grant a continuance.”

      With this background in mind, the Government has not

demonstrated that the withdrawal of charges in July 2007 was the

result of manifest necessity.   The standard for manifest

necessity is high, and the Government has not met that standard.

B.   Constitutionality of Article 44(c), UCMJ

      Having determined that there was no manifest necessity to

withdraw the charges, we must now address Appellant’s argument

that Article 44(c), UCMJ, is unconstitutional as applied to

trials by court members.

      “Constitutional rights identified by the Supreme Court

generally apply to members of the military unless by text or

scope they are plainly inapplicable.”   United States v. Marcum,

60 M.J. 198, 206 (C.A.A.F. 2004).    In general, the Bill of

Rights applies to members of the military absent a specific

exemption or “certain overriding demands of discipline and

duty.”   Courtney v. Williams, 1 M.J. 267, 270 (C.M.A. 1976)

(quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).    Though we

have “consistently applied the Bill of Rights to members of the

Armed Forces, except in cases where the express terms of the

Constitution make such application inapposite . . . . these

constitutional rights may apply differently to members of the


                                16
United States v. Easton, No. 12-0053/AR

armed forces than they do to civilians.”    Marcum, 60 M.J. at 205

(citation omitted).   “[T]he burden of showing that military

conditions require a different rule than that prevailing in the

civilian community is upon the party arguing for a different

rule.”   Courtney, 1 M.J. at 270.

     Applying this framework, we first note that there is no

dispute that the protection against double jeopardy applies in

courts-martial.   Furthermore, in courts-martial, there is no

right to indictment by grand jury.    U.S. Const. amend. V (“No

person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War or public

danger; . . . .”).    In addition, there is no Sixth Amendment

right to trial by jury in courts-martial.   Ex parte Quirin, 317

U.S. 1, 39 (1942); United States v. Wiesen, 57 M.J. 48, 50

(C.A.A.F. 2002) (per curiam).

     The constitutional question here relates to the timing of

when jeopardy attaches in the military context.   This is an

issue addressed by case law, the UCMJ, and the R.C.M., not the

text of the Constitution.

     The lead case in this area is Crist v. Bretz, where the

Supreme Court held that jeopardy attaches when a jury is

empaneled and sworn in both federal and state jury trials.     437


                                 17
United States v. Easton, No. 12-0053/AR

U.S. at 36.   Crist does not, however, address double jeopardy in

a military context.   Indeed, “[t]he reason for holding that

jeopardy attaches when the jury is empaneled and sworn lies in

the need to protect the interest of an accused in retaining a

chosen jury.”   Id. at 35.   The Sixth Amendment right to a jury

trial does not apply to courts-martial and, therefore,

protecting the interest of an accused in retaining a chosen

military “jury” does not directly apply.

     Against this backdrop we consider Congress’s exercise of

its authority reflected in the UCMJ to make rules and

regulations of the land and naval forces.   Article 44 was

enacted in 1950 as part of the UCMJ.8   The structure and purpose

of the UCMJ suggest a different purpose and legislative intent.

In fact the application of the Crist rule to courts-martial

would negate portions of the UCMJ.    For example, the text of

Article 29, UCMJ, 10 U.S.C. § 829 (2006), is clearly at odds

with the rationale in Crist.    Under Article 29, UCMJ, members

may be excused by the military judge “for physical disability or

other good cause” or by the convening authority for “good


8
  Article 44, UCMJ, represented “a substantial strengthening of
the rights of an accused.” It “forbids a rehearing where the
prosecution failed to make even a prima facie case” and
“prevents the retrial of a case which is terminated by the
prosecution for failure of available evidence or witnesses.” S.
Rep. No. 81-486, at 20 (1950), reprinted in 1950 U.S.C.C.A.N.
2222, 2244 (1950).



                                 18
United States v. Easton, No. 12-0053/AR

cause.”   “‘Good cause’ includes physical disability, military

exigency, and other extraordinary circumstances which render the

member . . . unable to proceed with the court-martial within a

reasonable time.”9   R.C.M. 505(f).   Excused members need not be

replaced unless failing to do so would cause the number of

members to fall below quorum.   United States v. Colon, 6 M.J.

73, 74 (C.M.A. 1978).   And when a court-martial is reduced below

a specified number of members, the convening authority may

detail new members to proceed with the trial.    Article 29, UCMJ.

     Article 29, UCMJ, illustrates that, due to the unique

nature of the military, an accused’s chosen panel will not

necessarily remain intact throughout a trial.    By enacting

Article 29, UCMJ, as it did, Congress evinced the intent that,

in light of the nature of the military, an accused does not have

the same right to have a trial completed by a particular court

panel as a defendant in a civilian jury trial does.10



9
  “‘Good cause’ does not include temporary inconveniences which
are incident to normal conditions of military life.” R.C.M.
505(f).
10
  The federal rules provide for the replacement of jurors and
the defendant plays a part in the selection of those alternate
jurors. See Fed. R. Crim. P. 24(c)(2)(A) (“Alternate jurors
must have the same qualifications and be selected and sworn in
the same manner as any other juror.”). Similarly, the military
accused has the right to voir dire new members detailed by the
convening authority. However, unlike the civilian system, if
excusal of a court-martial member does not reduce the panel
below quorum, the accused is not entitled to an additional

                                19
United States v. Easton, No. 12-0053/AR

     Further, under Article 16, UCMJ, members may sit as a

special court-martial consisting of not less than three members

without a military judge, in which case they exercise all

judicial functions.   Article 16, UCMJ, 10 U.S.C. § 816 (2006);

MCM, Analysis of the Rules for Courts-Martial app. 21 at A21-57

(2008 ed.).   In this type of special court-martial, members must

be sworn before the accused is even arraigned.   See Article

42(a), UCMJ, 10 U.S.C. § 842 (2006).    Such a panel could not

properly function if jeopardy attached when members were sworn

since they would not be able to perform any duties without

jeopardy attaching.

     Finally, the Crist rule would also negate application of

certain rules established by the MCM, pursuant to the

President’s authority as Commander in Chief and as delegated by

Congress pursuant to Article 36, UCMJ, 10 U.S.C. § 836 (2006).

In particular, R.C.M. 604(b) -- which states, “Charges withdrawn

after the introduction of evidence on the general issue of guilt

may be referred to another court-martial only if the withdrawal

was necessitated by urgent and unforeseen military necessity” --

would be negated by such application.

     Thus, the question presented is not one of straight case

law application.   Rather it is one where Congress, and to a



member, notwithstanding that the composition of the panel has
now changed. See Article 29(b),(c), UCMJ.

                                20
United States v. Easton, No. 12-0053/AR

lesser extent the President, has exercised authority in a

military context to specifically define the point at which

jeopardy attaches.   Whereas Supreme Court precedent, as

reflected in Crist, is directed to civilian practice and in a

manner that does not expressly address military context.    Nor

does the Supreme Court’s reasoning neatly or clearly apply in

military practice, where the UCMJ and the courts have long held

that a servicemember does not have a right to a particular jury.

     Were we to mechanically apply the holding in Crist to the

military context, we would negate numerous portions of the UCMJ,

including Article 29, Article 16, and other articles that

specify how a special court-martial without a military judge

operates.11   See Articles 19, 26, 40, 41, 51, UCMJ, 10 U.S.C. §§

819, 826, 840, 841, 851 (2006).    That Congress was purposeful in

selecting the point at which jeopardy attaches is illustrated

not only with respect to Articles 29 and 16, UCMJ, -- which only

function properly if the Article 44, UCMJ, standard for jeopardy


11
  When Article 44, UCMJ was adopted in 1950, most civilian
jurisdictions had the rule that jeopardy attaches when the jury
was sworn and empaneled. See, e.g., Cornero v. United States,
48 F.2d 69, 69 (9th Cir. 1931); United States v. Wells, 9 C.M.A.
509, 511, 26 C.M.R. 289, 291 (1958) (“Federal courts have held
that jeopardy normally attaches [in a jury trial] . . . when the
accused has been arraigned and has pleaded and the jury has been
impanelled and sworn.”); State v. Kiewel, 207 N.W. 646, 647
(Minn. 1926); Stough v. State, 128 P.2d 1028, 1032 (Okla. Crim.
App. 1942); State v. Chandler, 274 P. 303, 304 (Or. 1929); State
v. Brunn, 154 P.2d 826, 838 (Wash. 1945).



                                  21
United States v. Easton, No. 12-0053/AR

is applied -- but also because, despite the existence of the

Crist rule at the time, the 1983 redrafting of the UCMJ did not

amend the rule for double jeopardy.    Thus, we hold that Congress

appropriately exercised its Article I power -- which authorizes

it “[t]o make Rules for the Government and Regulation of the

land and naval Forces” -- when it enacted Article 44(c), UCMJ.12

     Finally, additional and adequate safeguards exist to

protect an accused’s right not to be tried without his consent a

second time for the same offense.    Under R.C.M. 604(b), if the

convening authority withdraws charges “for an improper reason,”

they cannot be re-referred for trial.   Charges withdrawn after

the introduction of evidence on the general issue of guilt may

be referred to another court-martial only if the withdrawal was

necessitated by urgent and unforeseen military necessity.”

                        III.   CONCLUSION

     For the foregoing reasons, we hold that the CCA erred when

it found that the convening authority’s decision to withdraw

charges was justified by manifest necessity.   However,

Appellant’s trial did not violate his constitutional right

against double jeopardy because jeopardy had not previously

12
  We have long held that “‘[j]udicial deference . . . is at its
apogee’ when the authority of Congress to govern the land and
naval forces is challenged.” United States v. Weiss, 36 M.J.
224, 226 (C.M.A. 1992) (quoting Solorio v. United States, 483
U.S. 435, 447 (1987)). This principle applies even when the
constitutional rights of a servicemember are implicated by a
statute enacted by Congress. Solorio, 483 U.S. at 448.

                                22
United States v. Easton, No. 12-0053/AR

attached.   The decision of the United States Army Court of

Criminal Appeals is affirmed.




                                23
United States v. Easton, No. 12-0053/AR

     ERDMANN, Judge (dissenting in part and concurring in part):

     I concur with the majority’s conclusion that the Court of

Criminal Appeals erred in holding that “manifest necessity”

justified the convening authority’s withdrawal of charges.    I do

not agree, however, with the majority’s conclusion that Article

44(c), Uniform Code of Military Justice (UCMJ), was

constitutionally applied in this case and therefore respectfully

dissent from that portion of the opinion.1

     As recognized by the majority, this court has long held

that the Bill of Rights applies to servicemembers except for

those that are “expressly or by necessary implication

inapplicable.”   Courtney v. Williams, 1 M.J. 267, 270 (C.M.A.

1976) (quoting United States v. Jacoby, 11 C.M.A. 428, 430-31,

29 C.M.R. 244, 246-47 (1960)); United States v. Marcum, 60 M.J.

198, 206 (C.A.A.F. 2004).   “Even though the Bill of Rights

applies to persons in the military, ‘the rights of men in the

armed forces must perforce be conditioned to meet certain

overriding demands of discipline and duty.’”   Courtney, 1 M.J.

at 270 (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953)).

Therefore when this court applies Supreme Court constitutional

1
  “A facial challenge to a legislative Act is, of course, the
most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v. Salerno,
481 U.S. 739, 745 (1987). Easton does not specifically argue
that Article 44(c), UCMJ, is unconstitutional on its face.
Therefore, I see no reason to address the statute’s facial
validity.
United States v. Easton, No. 12-0053/AR

precedent, it does so while “specifically address[ing]

contextual factors involving military life.”    Marcum, 60 M.J. at

205.   A statutory or regulatory provision in the civilian

community that is held to offend the Constitution may

nevertheless withstand a constitutional challenge in the

military if there exists overriding demands of discipline and

duty that are either expressly stated or necessarily implied.

See Id. at 206; Courtney, 1 M.J. at 270.

       “[T]he burden of showing that military conditions require a

different rule than that prevailing in the civilian community is

upon the party arguing for a different rule.”   Courtney, 1 M.J.

at 270; see also Marcum, 60 M.J. at 205.    The Government

recognized that Article 44(c) is contrary to the civilian rule

articulated in Crist v. Bretz, 437 U.S. 28 (1978), and therefore

has the burden of convincing this court that the UCMJ rule is

necessary because of “certain overriding demands of discipline

and duty.”   See Courtney, 1 M.J. at 270 (quoting Burns, 346 U.S.

at 140).

Neither a Military Accused’s Chosen Panel Nor a Federal Criminal
Defendant’s Chosen Jury Will Necessarily Remain Intact
Throughout Trial

       The constitutional issue in this case is simply stated:

whether the Supreme Court holding in Crist v. Bretz that

jeopardy attaches when a jury is empaneled and sworn is

applicable to military servicemembers being tried under the



                                  2
United States v. Easton, No. 12-0053/AR

UCMJ.   The majority finds the Crist decision to be inapplicable

to military servicemembers noting that the reason for the

Supreme Court’s holding in Crist was to protect “the interest of

an accused in retaining a chosen jury.”    United States v.

Easton, __ M.J. __ (18) (C.A.A.F. 2012) (quoting Crist, 437 U.S.

at 35) (quotation marks omitted).     The majority notes that a

military judge can excuse a panel member under the UCMJ “for

physical disability or other good cause” and the convening

authority can excuse a member for “good cause,” and that excused

members need not be replaced unless failing to replace them

would lose the quorum.    Id. at __ (18-19).   As a result, the

majority concludes that a military accused’s chosen panel will

not necessarily remain intact throughout a trial.    Id. at __

(19).   From this analysis the majority finds a congressional

intent that a military accused would not have the same right to

be tried by members of his choosing as does an accused in a

civilian criminal trial and that the Crist rule is inapplicable

in a military context.2   Id. at __ (18-19).




2
  I agree with the majority that “‘[j]udicial deference . . . is
at its apogee’ when the authority of Congress to govern the land
and naval forces is challenged.” United States v. Easton, __
M.J. __ (22) n.12 (C.A.A.F. 2012) (alterations in original)
(citations omitted). However, as broad as Congress’s discretion
may be, it is not “free to disregard the Constitution when it
acts in the area of military affairs.” United States v. Graf,
35 M.J. 450, 461 (C.M.A. 1992) (quoting Rostker v. Goldberg, 453
U.S. 57, 67 (1981)).

                                  3
United States v. Easton, No. 12-0053/AR

     This conclusion initially ignores the broad authority of a

federal district judge to excuse jurors in a criminal case once

a trial has commenced.3   Under Federal Rule of Criminal Procedure

(Fed. R. Crim. P.) 24(c), if a juror is excused prior to the

time a jury retires to consider a verdict, the juror may be

replaced by an alternative juror.    However, Fed. R. Crim. P.

23(b)(3) provides that after the jury has retired to deliberate

and the court finds it necessary to excuse a juror for good

cause, the court may permit a jury of eleven persons to return a

verdict.   In this regard, there appears to be little difference

between the federal rule and UCMJ provisions.

     While a court-martial panel may lose more than one member

and stay intact (until it falls below a quorum),4 a federal

criminal jury can lose a member and remain intact as well.

However, in both systems an accused has the right to participate

in the process of selecting original and replacement panel

members or jurors.   Further, there is nothing in the

Congressional Record that reflects any intent on the part of


3
  Reasons for excusing jurors in federal trials have included:
illness, travel plans, family emergency, medical emergencies,
emotional instability, and religious holidays. See Murray v.
Laborers Union Local No. 324, 55 F.3d 1445 (9th Cir. 1995); see
also United States v. Longwell, 410 F. App’x 684 (4th Cir.
2011); United States v. McFarland, 34 F.3d 1508 (9th Cir. 1994);
United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992); United
States v. Wilson, 894 F.2d 1245 (11th Cir. 1990); United States
v. O’Brien, 898 F.2d 983 (5th Cir. 1990).
4
  Articles 25 and 29, UCMJ, 10 U.S.C. § 825, 829 (2006); Rule for
Courts-Martial 903(a)(1).

                                 4
United States v. Easton, No. 12-0053/AR

Congress that an accused in the military would not have the same

basic constitutional right to retain an original panel as a

defendant in federal court has to retain an original jury.5

Article 44(c) Was Not Enacted to Address the Demands of
Discipline or Duty in the Military

     When Article 44 was initially proposed it contained the

language found in current subsections (a) and (b), but not the

language found in subsection (c).    Subsection (a) contains the

traditional prohibition against being placed twice in jeopardy.

Subsection (b) was added to address the concerns of Congress

over the automatic appeal system of the UCMJ.   See, e.g., H.R.

Rep. No. 81-491, at 23 (1949); Uniform Code of Military Justice:

Hearings on H.R. 2498 Before a Subcomm. of the H. Comm. on Armed

Services, 81st Cong. 803 (1949) [House UCMJ Hearings] (statement

by Colonel Frederick B. Wiener); Id. at 1048-49 (statement of

Felix Larkin).   At the time of the adoption of the UCMJ, the

general belief was that the Double Jeopardy Clause of the Fifth

Amendment allowed rehearings after an appellant successfully

appealed a conviction only because in appealing the case, the

appellant had waived his double jeopardy rights.   See Green v.

United States, 355 U.S. 184, 189 (1957).    Article 44(b) was

5
  The majority’s attempt in footnote 10 to bolster its
interpretation of congressional intent by distinguishing between
Fed. R. Crim. P. 24(c)(2)(A) and Article 29(b)-(c), UCMJ, is
unavailing as it appears to overlook both the Fed. R. Crim. P.
23(b)(3) and the requirements of Articles 25, 41, and 42 as
those articles would apply to additional members detailed to the
panel when it drops below quorum.

                                 5
United States v. Easton, No. 12-0053/AR

adopted to ensure that the Double Jeopardy Clause did not

prevent a rehearing in a situation where an accused did not

initiate the appeal.    See S. Rep. No. 81-486, at 19-20 (1949);

see also United States v. Ivory, 9 C.M.A. 516, 519-20, 26 C.M.R.

296, 299-300 (1958).

     Article 44(c), however, was not a part of the originally

proposed UCMJ and was adopted during the congressional hearings

in response to the Supreme Court decision in Wade v. Hunter, 336

U.S. 684 (1949).6    House UCMJ Hearings, at 1047-48 (1949)

(statement of Felix Larkin).    Wade was a member of the 76th

Infantry Division during World War II and had been charged with

a rape that occurred in Germany.       Wade, 336 U.S. at 685-86.       A

general court-martial was convened, evidence taken, and the

court then closed for deliberation.      Id. at 686.     Before

reaching a decision, however, the Law Member announced that the

court-martial would be continued in order to secure the

testimony of two additional witnesses.      Id.      at 686.   The

convening authority later withdrew the charges and transferred

the case to another convening authority as the 76th Division was

advancing into Germany and was no longer in the area where the

witnesses resided.    Id. at 686-87.     The charges were later re-

referred by a new convening authority and Wade moved to dismiss

on the basis of double jeopardy.       Id. at 687.    The Law Member

6
  Wade v. Hunter is also significant as it clarified that the
Fifth Amendment applied to courts-martial. Id. at 690.

                                   6
United States v. Easton, No. 12-0053/AR

denied the motion and Wade was convicted.    Id.    The case

eventually made it to the Supreme Court which ruled that double

jeopardy did not bar the second trial because the first trial

was terminated due to “manifest necessity.”    Id. at 688, 690.

     Following the Wade decision there was concern that the

proposed Article 44 would continue to allow the convening

authority to terminate an ongoing trial because the government

was not fully prepared.    Uniform Code of Military Justice:

Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the S.

Comm. on Armed Services, 81st Cong. 167-70 (1949) [Senate UCMJ

Hearings] (statement of Gen. Franklin Riter).      The congressional

response to this concern was the adoption of Article 44(c),

which was designed to prevent a second prosecution where a

court-martial had been convened and evidence had been received,

but is later terminated because the government was not fully

prepared.    House UCMJ Hearings, at 671 (statement of Gen.

Franklin Riter); Senate UCMJ Hearings, at 170 (statement of Gen.

Franklin Riter).7

     The importance of this history is that the language of

Article 44(c) was adopted not because of any overriding demand

for discipline or duty in the military, but rather to protect

servicemembers from retrial where the prosecution initiated a

7
  For an   excellent discussion of double jeopardy issues in the
military   justice system, see Daniel J. Everett, Double, Double
Toil and   Trouble: An Invitation for Regaining Double Jeopardy
Symmetry   in Courts-Martial, Army Lawyer, Apr. 2011, at 6.

                                  7
United States v. Easton, No. 12-0053/AR

trial only to have the convening authority withdraw the charges

so the government could gather additional evidence.   It also

should be noted that, at the time of the enactment of Article

44, the Congressional Record reflects that the drafters were

attempting to bring military practice in line with civilian

practice.8

     Twenty-eight years following the enactment of the UCMJ, the

Supreme Court decided Crist v. Bretz, where it held, “Today we

explicitly hold what Somerville assumed:    The federal rule that

jeopardy attaches when the jury is empaneled and sworn is an

integral part of the constitutional guarantee against double

jeopardy.”   437 U.S. 28, 38 (1978) (emphasis supplied).    The

majority recognizes that the Fifth Amendment protection against

double jeopardy applies in both the civilian and military

contexts but relegates the point at which jeopardy attaches as a

seemingly minor difference.   This ignores both the language of

the Supreme Court’s holding in Crist and the drafters’ intent

that the Double Jeopardy Clause apply in the military in the

same manner as it did in civilian courts.   Of course, when

Professor Morgan stated that intent to the Senate Committee, no

one knew that the Fifth Amendment double jeopardy protections


8
  Professor Edmund Morris Morgan, chair of the drafting committee
informed the Senate Committee that “I really am just as anxious
as you Senators are to have the double jeopardy clause apply,
and apply the way it does in civil courts.” Senate UCMJ
Hearings, at 325.

                                 8
United States v. Easton, No. 12-0053/AR

attached when the jury is empaneled and sworn.    Once the

decision in Crist was issued, state and local jurisdictions were

required to bring their practices into conformance with the

Constitution and in this circumstance there is no reason that

the military should not do so as well.

       The majority holds that application of the Fifth Amendment

attachment of jeopardy to the military is inconsistent with

other provisions in the UCMJ.    This implies that Article 44(c)

was a provision that was carefully integrated and coordinated

with the UCMJ provisions that the majority now claims will be

inconsistent.    However, Article 44(c) was not part of the

initial draft of the UCMJ and was drafted to address the Wade

situation.9    In any event, Article 44(c) was clearly not adopted

to address any issues of discipline or duty, but was adopted for

the increased protection of servicemembers.    Any inconsistencies

that may exist from application of the Crist rule to the

military justice system are easily remedied by Congress or the

President, and the fact that there may be inconsistencies does

not implicate any overriding discipline or duty concern that

would justify withholding Fifth Amendment protections from

members of the military.

       I would hold that jeopardy attaches in a general court-

martial composed of members and presided over by a military


9
    See supra pp. 6-8.

                                  9
United States v. Easton, No. 12-0053/AR

judge upon swearing and empaneling the panel.10   Article 44(c) is

therefore unconstitutional as applied to Easton under the facts

of this case.




10
  Court member panels, like their civilian counterparts, take
two oaths. The first for the purposes of voir dire and the
second to execute their duty as a panel. Unlike civilian
juries, however, court member panels swear to both oaths at the
same time in one combined oath, prior to voir dire. In
contrast, civilian juries swear an oath for purposes of voir
dire, then swear a second oath (and become empaneled) just prior
to opening statements. The military practice of a combined oath
is merely for “administrative convenience.” See Manual for
Courts-Martial, United States, Analysis of the Rules for Courts-
Martial app. 21 at A21-49 (2008 ed.). As this difference is
simply for administrative convenience, it does not warrant a
separate rule.

                               10
