Thursday, June 28, 2007

Interesting case note

I must confess that the Federal Circuit Bar Journal isn't on my regular reading list. But the "Cases and Recent Developments" section of the most recent issue includes a particularly interesting case note about a collateral review of a court-martial conviction -- Ragard v. United States, 439 F.3d 1378 (Fed. Cir. 2006). See 16 Fed. Cir. B.J. 133, 186-88 (2006/2007).

In Ragard, an Army captain's case was handled by the D.C. Corporation Counsel's office and was put in a pretrial diversion program. The Army then decided to prosecute Captain Ragard for offenses arising from the same misconduct. Ragard challenged the prosecution on double jeopardy grounds and, essentially, estoppel. The Federal Circuit ruled that Ragard had abandoned the double jeopardy claim, but reviewed the merits of the estoppel argument. The court held that no contact between Ragard and the federal government barred his court-martial prosecution. The court drew a distinction between prosecutions on behalf of the District of Columbia by the Corporation Counsel's office and prosecutions on behalf of the United States by the U.S. Attorney's office. The Supremes later denied cert in the case. Ragard v. United States, 127 S. Ct. 109 (2006).

4 comments:

John O'Connor said...

Not so fast. When I read your description of this case, the result seemed incomprehensible because the District of Columbia is clearly a federal entity. But the court didn't really distinguish, as you say, between "prosecutions" by the US Atty and by the Corporation Counsel's office.

Rather, this was a case that ended up with "no prosecution" because of the diversion agreement. This case thus deals not with the effect of a local DC "prosecution" but whether an agreement by Corporation Counsel not to go forward with charges is binding on the military. I agree with the court on that point. If the captain had been prosecuted, and pled out in a way that would allow his conviction to be eliminated if he completed a diversion program, then I would find double jeopardy bars a subsequent court-martial. But that's not what happened here.

CAAFlog said...

Please note the following excerpt from Ragard:

The United States Attorney for the District of Columbia generally is in charge of "conducting in the name of the United States" "criminal prosecutions" for offenses under the District of Columbia Code. D.C. Code § 23-101(c). That statute contains exceptions, however, under which prosecution for certain minor offenses "shall be conducted in the name of the District of Columbia by the Corporation Counsel for the District of Columbia or his Assistants . . . ." One of the categories of offenses that the Corporation Counsel is to prosecute in the name of the District of Columbia is "lewd, indecent, or obscene acts." D.C. Code § 23-101(b).

Ragard v. United States, 439 F.3d 1378, 1381 (Fed. Cir. 2006).

Note also the following excerpt:

When the Assistant Corporation Counsel filed charges of indecent exposure against Ragard and then agreed in the diversion agreement to dismiss those charges if Ragard performed specified community service, he was acting solely for the District of Columbia pursuant to the foregoing statutory authority. The United States Attorney for the District of Columbia had no involvement in Mr. Ragard's prosecution or the execution and performance of the diversion agreement. Only the District of Columbia, not the United States, was a party to and bound by that agreement. The Corporation Counsel had no authority in the diversion agreement to bind the Army not to court martial Ragard, and the agreement did not do so.

Id.

So the Federal Circuit expressly distinguished "criminal prosecutions" by the U.S. Attorney's office and "prosecution for certain minor offenses" by the D.C. Corporation Counsel's office.

The Double Jeopardy implications of a CONVICTION would have been different, but "prosecution" is not synonymous with "conviction" -- as the Federal Circuit implicitly recognized when it referred to the U.S. Attorney having "no involvement in Mr. Ragard's prosecution."

Sat Jun 30, 12:05:00 AM EDT

John O'Connor said...

But your original post suggested that the court had somehow found that the Corporation Counsel was not a federal actor, which would be clearly wrong in my mind. The case turns not so much on federal versus non-federal, but on ability of one federal actor to bind a different federal actor. On that analysis, and under these facts, I think the court got it right.

CAAFlog said...

I honestly can't see where my original post made that suggestion. Here's what seems to be the relevant part of the original post:

"The Federal Circuit ruled that Ragard had abandoned the double jeopardy claim, but reviewed the merits of the estoppel argument. The court held that no contact between Ragard and the federal government barred his court-martial prosecution. The court drew a distinction between prosecutions on behalf of the District of Columbia by the Corporation Counsel's office and prosecutions on behalf of the United States by the U.S. Attorney's office."

The court said the D.C. Corporation Counsel's office "was acting solely for the District of Columbia." The court then noted the absence of involvement by the U.S. Attorney and observed, "Only the District of Columbia, not the United States, was a party to and bound by that agreement." I can't see a distinction between what the court said and how the original post characterized it.