UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                COOK, CAMPANELLA, HAIGHT
                                   Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                            Private E2 SETH D. LEMASTERS
                              United States Army, Appellant

                                        ARMY 20111143

                      U.S. Army Combined Arms Support Command,
                      Sustainment Center of Excellence and Fort Lee
                              Denise R. Lind, Military Judge
                      Colonel Andrew J. Glass, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain John L. Schriver, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief).


                                       31 December 2013

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                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

      A general court-martial composed of officers and enlisted members convicted
appellant, contrary to his pleas, of one specification of aggravated sexual assault and
one specification of assault consummated by battery in vi olation of Articles 120 and
128, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 928 (2006 & Supp. III
2010) [hereinafter UCMJ]. 1 The panel sentenced appellant to a dishonorable
discharge, confinement for ten years, forfeiture of all pay and allowances , and
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged and credited appellant with 384 days of pretrial confinement credit.


1
 Appellant was acquitted of two additional specifications of violations of Article
120, UCMJ, and one specification of assault consummated by battery in violation of
128, UCMJ.
LEMASTERS — ARMY 20111143

      This case is before us for review pursuant to Article 66, UCMJ. Appellate
defense counsel raises two assignments of er ror. One assignment of error merits
discussion but no relief. The remaining assignment of error and those matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) are without merit.

                                 BACKGROUND

       On 25 November 2010, 51-year old civilian female, DA, and her female
partner had a get-together at their farmhouse in Gloucester County, Virginia, to
celebrate Thanksgiving. DA invited her nephew, Private (PVT) PT , and his friend,
appellant, to the holiday celebration and to spend the night at her home. Throughout
the day there were games, frivolity, and much drinking. Late that evening, DA’s
partner left the house to go “Black Friday” shopping. By this time, all the other
guests, except for PVT PT and appellant, had gone home.

       By the end of the evening, appellant had become progressively more
intoxicated and obnoxious. Growing less tolerant of appellant’s drunken boorish
behavior, DA suggested that it was time for everyone to go to sleep. Private PT
helped appellant to his bedroom and placed a garbage can by his bed in case he
needed to throw up. DA and PVT PT stayed up a bit longer, eating pie and chatting ,
before finally retiring to their respective bedrooms to sleep.

       Sometime later, DA was awakened by appellant on top of her with his penis
inside her vagina. After realizing what was happening, DA pushed appellant off her,
grabbed a rifle off the wall, and ran to wake up her nephew to get his help. As PVT
PT was getting up, appellant joined them in PVT PT’s bedroom and assaulted DA
from behind, putting her in a choke-hold. Private PT took the rifle from his aunt,
wrestled appellant off her, and told appellant to leave the house immediately. DA
then called 911 to report the sexual assault. While DA was on the phone with the
emergency operator, appellant retrieved his pants from DA’s bedroom and left the
house.

       Gloucester County Police responded to the 911 call , found appellant in the
wooded area outside DA’s home, and arrested him. They then conducted their
investigation into the allegation. Appellant was interrogated by the Gloucester
County Police and his pants were confiscated as evidence. DA was interviewed by
the Gloucester County Police and then taken to the local hospital where she
underwent a sexual assault examination. Her clothes were also taken during the
exam as evidence and turned over to the police for processing. The Gloucester
Police also took physical evidence from DA’s home, including her sheets, and
interviewed PVT PT as well.

      The Gloucester County Police placed appellant in Gloucester County jail
pending trial. On 26 November 2010, Gloucester County Police notified Training


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LEMASTERS — ARMY 20111143

and Doctrine Command (TRADOC) that appellant was being held on rape charges.
That evening the information was subsequently passed to appellant’s chain of
command.

       Appellant was already under investigation by CID stemming from an
unrelated sexual assault allegation made eight months prior. On 29 November 2010,
Army Criminal Investigation Command (CID) added this new allegation to their case
file on the appellant, citing the “Gloucester County initial investigation .”

       On 1 December 2010, Gloucester County investigators met with CID agents to
discuss the prior off-post report of a sexual assault by the appellant against a
separate victim. Gloucester County conduct ed its own investigation into that
allegation, including victim and witness interviews. They did not, however, pursue
charges in that case, presumably due to jurisdictional restraints.

       On 24 May 2011, appellant was tried in the Circuit Criminal Court of
Gloucester County, Virginia, for raping DA by force or threat in violation of
Virginia law. A jury acquitted appellant of the charge and the court ordered him
released from civilian confinement.

       Appellant’s company commander Captain (CPT) JJ , the brigade trial counsel,
CPT JS, and an Army Funded Legal Education Program (FLEP) legal intern were
present during the civilian trial. At the conclusion of the trial, appellant was turned
over to his company commander, who drove him back to Fort Eustis and informed
him that he could potentially be tried again—this time by the Army. That same day,
his company commander ordered him into pretrial confinement . Fourteen days later
charges were preferred against appellant. He was eventually tried by court-martial
and convicted by an officer and enlisted panel of the aggravated sexual assault of
DA.

                              LAW AND DISCUSSION

                                   Dual Sovereignty

       Appellant now asserts that his prosecution by a military court-martial after his
acquittal in the Circuit Criminal Court of Gloucester County, Virginia, is a violation
of his right against double jeopardy and that the dual sovereignty doctrine should not
apply in his case. Appellant argues that the State of Virginia was acting as a “tool”
of the Army and that the state and the Army “colluded” to prosecute appellant, thus
resulting in a sham prosecution. Appellant raised this contention at trial and now
reasserts it before this court. We find appellant's right against double jeopardy was
not violated by his subsequent court-martial and that the military judge did not abuse
her discretion by ruling against appellant on this issue.




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LEMASTERS — ARMY 20111143

       “Although the Fifth Amendment protects against double jeopardy, its shield
only extends to prosecutions by the same sovereign.” United States v. Stokes, 12
M.J. 229, 230 (C.M.A. 1982). The law is well-settled that multiple prosecutions of
an accused by different sovereigns violate neither double jeopardy nor due process.
Bartkus v. Illinois, 359 U.S. 121 (1959); Stokes, 12 M.J. 229. 2 “Dual sovereignty”
is a concept firmly embedded in our constitutional jurisprudence, deriving from the
reality that each state was an independent political entity before the United States
Constitution was ratified. Printz v. United States, 521 U.S. 898, 918-19 (1997). As
separate sovereigns, the federal government and each state “[have] the power,
inherent in any sovereign, independently to determine what shall be an offense
against its authority and to punish such offenses, and in doing so each ‘is exercising
its own sovereignty, not that of the other.’” United States v. Wheeler, 435 U.S. 313,
320 (1978) (quoting United States v. Lanza, 260 U.S. 377, 382, (1922)). See also
United States v. Lara, 541 U.S. 193 (2004); Heath v. Alabama, 474 U.S. 82 (1985) .

                                 The Bartkus Exception

        The Supreme Court has articulated an exception to the principle of dual
sovereignty. Dual state and federal prosecutions might run afoul of the general rule
permitting prosecutions if one authority was acting as a “tool” of the other, or if the
state prosecution merely was “a sham and a cover for a federal prosecution.”
Bartkus, 359 U.S. at 123-24. The Court further stated that “at some point the cruelty
of harassment by multiple prosecutions by a State would offend due process . . . .”
Id. at 127.

       This “exception,” however, is considered extremely narrow and extra-
ordinarily difficult to prove. United States v. Raymer, 941 F.2d 1031, 1037 (10th
Cir. 1991); United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir. 1987); United
States v. Rashed, 234 F.3d 1280, 1282 (D.C. Cir. 2000); United States v. Guzman, 85
F.3d 823, 827 (1st Cir. 1996); United States v. Figueroa-Soto, 938 F.2d 1015, 1019
(9th Cir. 1991). In the military system of justice, we find a notable absence of the
application of this exception.


2
  In Stokes, the Court of Military Appeals provided, “When the [UCMJ] was first
enacted, it had not been firmly established that service members were entitled to the
Fifth Amendment protection against former jeopardy. However, Article 44(a) of the
[UCMJ] mooted the issue by commanding, ‘No person may, without his consent, be
tried a second time for the same offense.’ Undoubtedly this provision was not
intended to abolish the dual-sovereignties rules that had been applied in interpreting
the constitutional guarantee against successive trials for the same offense. Thus,
trial by a court-martial is barred by the Code only if the accused has already been
tried in a court which derives its authority from the Federal Government. But a trial
by court-martial is not barred if the earlier trial was by a state or foreign co urt.” 12
M.J. at 231 (internal citations omitted).

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LEMASTERS — ARMY 20111143

       The exception is limited “to situations in which one sovereign so thoroughly
dominates or manipulates the prosecutorial machinery of another that the latter
retains little or no volition in its own proceedings.” Guzman, 85 F.3d at 827.
However, even in Guzman, where the evidence indicated that an agent of the United
States traveled to the island of St. Maarten, alerted St. Maarten Police to the
defendant's presence on a ship smuggling drugs, participated in a search for drugs on
board, and testified at trial, the court held that those facts demonstrated, “nothing
more than the rendering of routine intergovernmental assistance.” Id. at 828. The
court concluded that “[c]ooperative law enforce ment efforts between independent
sovereigns are commendable, and, without more, such efforts will not furnish a
legally adequate basis for invoking the Bartkus exception to the dual sovereign
rule.” Id. In fact, some courts have even questioned whether the exception exists at
all. See United States v. Brocksmith, 991 F.2d 1363, 1366 (7th Cir. 1993); United
States v. Patterson, 809 F.2d 244, 247 n.2 (5th Cir. 1987).

       Appellant argues essentially three telltale indicators establish the Bartkus
principle in this case. As evidence of collusion, appellant first notes that two
Virginia prosecutors “discussed appellant’s case with the military trial counsel and
appellant’s company commander” before the civilian trial and that the company
commander was unsure of the “prosecutor’s motives” in having that discussion ,
which he promptly terminated. Appellant next observes the presence of the company
commander, the military prosecutor and a judge advocate FLEP legal intern at the
appellant’s civilian trial. Lastly, appellant submits that appellant’s company
commander “whisked him away” after his civilian acquittal and immediately placed
him in pretrial confinement. While the record supports these facts as accurate, they
do not lead us to conclude that the military exercised any control over Gloucester
County’s decision to prosecute him.

        In fact, we find nothing to suggest that the Army “dominated or manipulated”
the prosecutorial machinery of the State or vice versa, such that either one retained
“little or no volition in its own proceedings” to warrant an application of the Bartkus
exception. Rather, the record demonstrates that the military authorities prosecuted
appellant because they believed that Gloucester County’s civilian authorities failed
to protect the military's interests in this case.

                                   CONCLUSION

       Upon consideration of the entire record and the submissions by the parties, we
discern no circumstance in this case warranting an exception to the dual sovereignty
doctrine. We hold the findings of guilty and sentence as approved by the convening
authority correct in law and fact. Accordingly, the findings of guilty and the
sentence are AFFIRMED.




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LEMASTERS — ARMY 20111143

    Senior Judge COOK and Judge HAIGHT concur.




                                             FOR THE COURT:




                                             ANTHONY O. POTTINGER
                                             Chief Deputy Clerk of Court




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