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 

2

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

3

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

4

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 

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

attached. The decision of the United States Army Court of 

Criminal Appeals is affirmed. 
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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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 courtmartial composed of members and presided over by a military 

 

9

 See supra pp. 6-8. 
United States v. Easton, No. 12-0053/AR 

10

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 CourtsMartial app. 21 at A21-49 (2008 ed.). As this difference is 

simply for administrative convenience, it does not warrant a 

separate rule.