FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 10-30313 Plaintiff-Appellee,

D.C. No.

v.  CR 09-5883

ROBERT REVELES,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

August 3, 2011—Seattle, Washington

Filed October 24, 2011

Before: John T. Noonan and Milan D. Smith, Jr.,

Circuit Judges, and Andrew J. Guilford,* District Judge.

Opinion by Judge Guilford

*The Honorable Andrew J. Guilford, United States District Judge for

the Central District of California, sitting by designation. 

19251
COUNSEL

Michael Filipovic, First Assistant Public Defender, Seattle,

Washington; Ulrike B. Connelly, Perkins Coie LLP, Seattle,

Washington, for the defendant-appellant.

Jenny A. Durkan, United States Attorney, Barbara J. Sievers,

Assistant U.S. Attorney, Seattle, Washington, for the plaintiffappellee.

UNITED STATES v. REVELES 19253
OPINION

GUILFORD, District Judge:

This case concerns whether the Government violated the

Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution by prosecuting and convicting Robert Reveles

for a crime after the Navy punished him for the same offense.

The Government argues that the Double Jeopardy Clause is

not implicated because the non-judicial punishment (“NJP”)

administered by the Navy under 10 U.S.C. § 815 is not criminal in nature. The Court agrees, and holds that the Government’s prosecution of Reveles was not barred by the Double

Jeopardy Clause. Reveles’ conviction is AFFIRMED.

FACTS

The facts of this case are straightforward and undisputed.

Reveles was accused of drunk driving in October 2009 on

Kitsap Naval Base in Bremerton, Washington. Reveles was

then charged by the Navy in an Article 15 Uniform Code of

Military Justice (“UCMJ”) proceeding, which is considered

an NJP proceeding. The maximum punishment that the presiding officer could impose in the proceeding was: (a) diminished rations; (b) correctional custody; (c) forfeiture of pay;

(d) reduction in pay grade; (e) extra duties; (f) restriction to

limits; (g) detention; (h) an admonition; and (i) a reprimand.

See UCMJ Art. 15(b). As discussed later, limitations on the

severity of these punishments include a maximum of 30 days

of correctional custody.

In the NJP proceeding, Reveles was found guilty of

drunken operation of a motor vehicle, in violation of Article

111 of the UCMJ, and was sentenced to: (a) forfeiture of $200

of one month’s pay; (b) a single-grade pay reduction (a total

loss of $316 per month); (c) extra duty for 45 days; and (d)

restriction to ship for 45 days. 

19254 UNITED STATES v. REVELES
Based on the same conduct, Reveles was later charged in

federal court with drunk driving in violation of 18 U.S.C. §§ 7

and 13 and Revised Code of Washington § 46.61.502.

Reveles pled not guilty and filed a Motion to Dismiss for

Alleged Violations of the Double Jeopardy Clause (“Motion

to Dismiss”), which was denied by a magistrate judge. While

preserving his right to appeal the magistrate judge’s denial,

Reveles entered a conditional guilty plea and was sentenced

to 24 hours in a detention center and a $375 fine. Reveles then

appealed the magistrate judge’s denial of his Motion to Dismiss to the district court. The district court denied his appeal

in October 2010. 

ANALYSIS

[1] The Fifth Amendment’s Double Jeopardy Clause states

that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V.

“The Clause protects only against the imposition of multiple

criminal punishments for the same offense . . . .” Rivera v.

Pugh, 194 F.3d 1064, 1068 (9th Cir. 1999) (quoting Hudson

v. United States, 522 U.S. 93, 99 (1997) (emphasis in original)). In Rivera, the Supreme Court set forth the test we must

apply:

Whether a particular punishment is criminal or civil

is, at least initially, a matter of statutory construction. A court must first ask whether the legislature,

in establishing the penalizing mechanism, indicated

either expressly or impliedly a preference for one

label or the other. Even in those cases where the legislature has indicated an intention to establish a civil

penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or

effect as to transform what was clearly intended as

a civil remedy into a criminal penalty. 

Id. (quoting Hudson, 522 U.S. at 99). 

UNITED STATES v. REVELES 19255
[2] Thus, we must first determine whether Congress

intended NJP to be criminal or noncriminal. And if NJP was

intended to be noncriminal, we must then examine whether

NJP is so punitive that it has been transformed into a criminal

penalty.

1. WHETHER CONGRESS INTENDED NJP TO BE

CRIMINAL

Reveles argues that Congress intended NJP to be criminal

in nature. This argument fails.

“The UCMJ provides four methods for disposing of cases

involving offenses committed by servicemen: the general,

special, and summary courts-martial, and disciplinary punishment administered by the commanding officer pursuant to

Art. 15 UCMJ, 10 U.S.C. § 815.” Middendorf v. Henry, 425

U.S. 25, 31 (1976). Unlike courts-martial, which resemble

judicial proceedings, NJP “is an administrative method of

dealing with the most minor offenses.” Id. at 31-32 (internal

citations omitted).

When interpreting a statute, “we look first to the plain language of the statute, construing the provisions of the entire

law, including its object and policy, to ascertain the intent of

Congress.” Zuress v. Donley, 606 F.3d 1249, 1252-53 (9th

Cir. 2010) (quoting Northwest Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)). A review of the NJP

statute’s plain language reveals that Congress intended it to be

noncriminal in nature. 

[3] The text of the statute shows an intent to distinguish

minor NJP disciplinary proceedings from criminal proceedings. See 10 U.S.C. § 815. According to the statute, NJPs are

“disciplinary punishments for minor offenses without the

intervention of a court-martial . . . .” Id. at § 815(b). The title

of the statute, “Commanding officer’s non-judicial punishment,” confirms Congress’ intent to distinguish NJP from tra19256 UNITED STATES v. REVELES
ditional criminal proceedings. Id. (emphasis added); but see

State v. Ivie, 961 P.2d 941, 945 (Wash. 1998) (state court

holding that the statute’s title indicated NJP was criminal,

rather than civil, in nature). Thus, the language of the NJP

statute indicates that Congress intended NJP to be noncriminal in nature. 

[4] Legislative history confirms Congress’ intent to make

NJP noncriminal. The Senate Armed Services Committee

commented that NJPs “deal with minor infractions of discipline without resorting to criminal law processes.” S. Rep.

No. 87-1911, at 2 (1962) (emphasis added). It further stated

that these punishments are “non-judicial” and are “not considered as a conviction of a crime and in this sense ha[ve] no

connection with the military court-martial system.” Id.

(emphasis added). 

[5] The Manual for Courts-Martial (“MCM”) and the Manual of the Judge Advocate General, Department of the Navy

(“JAGMAN”), are also helpful in determining the intended

nature of NJP. Although neither of these documents is technically “legislative history,” each of them confirms an intent to

make NJP a noncriminal sanction. Specifically, the MCM

states that NJP’s purpose is to “promote[ ] positive behavior

changes in servicemembers without the stigma of a courtmartial conviction.” MCM, pt. V, ¶ 1c (2008). And the JAGMAN’s description of “Captain’s Mast” proceedings—an

alternate name for modern-day NJP proceedings—

corroborates this purpose:

Captain’s mast/office hours that results in nonjudicial punishment is not a criminal trial; it is a disciplinary proceeding. . . . Such punishment is designed

for minor misconduct in a nonjudicial forum, without the permanent stigma of a record of “Federal

conviction.” As such, the standard of proof by which

facts must be established at mast or office hours is

UNITED STATES v. REVELES 19257
a “preponderance of the evidence,” rather than “beyond a reasonable doubt,” as it is at courts-martial.

JAGMAN § 0110(b) (emphasis added).

To support his argument that the MCM indicates that NJP

is criminal in nature, Reveles notes that the MCM defines a

“criminal proceeding” to include “nonjudicial punishment

proceedings.” MCM, pt. IV, ¶ 96c. Reveles also cites a case

from the U.S. Court of Appeals for the Armed Forces, United

States v. Arriaga, 49 M.J. 9, 12 (C.A.A.F. 1998), that refers

to this definition. 

[6] But the MCM section and case Reveles cites both concern obstruction of justice charges. The MCM section states

that “[f]or purposes of this paragraph [concerning obstruction of justice], ‘criminal proceedings’ includes nonjudicial

punishment proceedings . . . .” MCM, pt. IV, ¶ 96c (emphasis

added). Thus, while the MCM appears to extend obstruction

of justice charges to conduct concerning NJP proceedings, it

never indicates that NJP is criminal in nature. Reveles’ argument that this narrow provision has greater applicability is

unpersuasive. 

Numerous courts have also recognized that Congress

intended NJP to be noncriminal. For example, the Armed

Forces Court of Appeals has stated that “the title of the [NJP]

legislation—‘Commanding officer’s non-judicial punishment’

—underscores the legislative intent to separate NJP from the

judicial procedures of the military’s criminal law forum, the

court-martial.” United States v. Gammons, 51 M.J. 169, 177

(C.A.A.F. 1999). Similarly, the United States Court of Claims

has held that “nonjudicial punishment, unlike the general and

special court-martial, is not a formal adversary criminal proceeding, but is regarded as noncriminal in nature.” Wales v.

United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v.

Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also

Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas

19258 UNITED STATES v. REVELES
v. United States, 620 F.2d 247, 251-52 (Ct. Cl. 1980); United

States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007);

State v. Myers, 58 P.3d 643, 646 (Haw. 2002); but see United

States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga,

49 M.J. at 12; Ivie, 961 P.2d at 945. 

Reveles argues that Volpe and Arriaga expose a split

among federal courts concerning the categorization of NJP.

But Volpe is distinguishable because the magistrate judge in

that case did not conduct a Hudson/Rivera analysis when considering defendant’s Double Jeopardy arguments. Volpe, 986

F. Supp. at 124-26. And Arriaga does not support Reveles’

argument because that case involved NJP in an obstruction of

justice context. Although Ivie is largely on point, it is a statelaw case with a dissent that conforms to the majority of federal case law on this issue. Ivie, 961 P.2d at 948. Reveles’

contention that federal and military courts are split on this

issue is unpersuasive.

Reveles makes several other arguments seeking to show

that Congress actually intended NJP to be criminal. Reveles

argues, for example, that the MCM prohibits internal double

punishment, and that NJP may not be imposed for the same

offense more than once. See MCM, pt. V, ¶ 1f.(1). Reveles

also argues that the MCM prohibits the imposition of NJP for

an offense tried by a federal court. See id., pt. V, ¶ 1f.(5).

But Reveles overstates his arguments concerning multiple

prosecutions and punishments. Although MCM regulations

generally forbid imposing NJP on a servicemember after he

has been prosecuted civilly, they do not preclude prosecution

in a civilian court after NJP has been imposed. See MCM, pt.

V, ¶ 1f.(5). Further, in the military setting, “nonjudicial punishment for an offense other than a minor offense (even

though thought by the commander to be minor) is not a bar

to trial by court-martial for the same offense.” MCM, pt. V,

¶ 1e (citing R.C.M. 907(b)(2)(D)(iv)) (but recognizing that

the MCM allows an accused at a court-martial to show previUNITED STATES v. REVELES 19259
ous imposition of NJP to mitigate a possible court-martial

sentence).

Reveles separately argues that NJP proceedings contain due

process safeguards traditionally associated with criminal proceedings. Reveles is correct that some of these safeguards

exist, including the right of the accused to receive notice of

charges and to be present at NJP proceedings. But the presence of these procedural safeguards does not negate Congress’ intent to create an “essential and prompt means of

maintaining good order and discipline” in the military. MCM,

pt. V, ¶ 1c. In fact, other rules typically included in criminal

proceedings, such as formal rules of evidence, are absent from

NJP proceedings. MCM, pt. V, ¶ 4c.(3). Moreover, at least

one military branch — the Navy — uses a “preponderance of

the evidence” standard rather than the “beyond a reasonable

doubt” standard that is the hallmark of criminal trials. Turner

v. Dep’t of Navy, 325 F.3d 310, 313 (D.C. Cir. 2003); JAGMAN § 0110(b). The “preponderance of the evidence” standard indicates that NJP proceedings were not intended to be

criminal. 

[7] Because we hold that Congress intended NJP to be

noncriminal in nature, we now consider whether NJP is “so

punitive either in purpose or effect as to transform what was

clearly intended as a civil remedy into a criminal penalty.”

Rivera, 194 F.3d at 1068. 

2. WHETHER THE STATUTE IS SO PUNITIVE

THAT IT TRANSFORMS THE CIVIL REMEDY

INTO A CRIMINAL PENALTY

Reveles argues that NJP is so punitive that it has been

transformed into a criminal penalty. Rivera, 194 F.3d at 1068.

This argument fails. 

To determine whether a remedy denominated “civil” is

actually a punitive criminal penalty subject to the prohibition

19260 UNITED STATES v. REVELES
of double jeopardy, a court should consider whether the sanction 

(1) involves an affirmative disability or restraint; (2)

has historically been regarded as punishment; (3)

requires a finding of scienter; (4) will promote retribution and deterrence; (5) applies to behavior that is

already a crime; (6) can have an alternative purpose;

and (7) appears excessive in relation to the alternative purpose.

Id. (citing Hudson, 522 U.S. at 99). “These factors must be

considered in relation to the statute on its face, and only the

clearest proof will suffice to override legislative intent and

transform what has been denominated a civil remedy into a

criminal penalty.” Id. (citing Hudson, 522 U.S. at 99) (emphasis added). With this very high burden, even a showing that

most of the relevant factors weigh in favor of considering a

punishment criminal in nature may be insufficient to transform it into a criminal punishment. 

We now review the relevant factors as they apply to NJP.

2.1 Whether NJP Involves an Affirmative Disability or

Restraint

A punishment that involves imprisonment or another form

of restraint is more likely to be criminal, rather than civil, in

nature. See Hudson, 522 U.S. at 104; Trogden, 476 F. Supp.

2d at 569-70.

NJP includes the possibility of 30 days “correctional custody” under certain circumstances. 10 U.S.C. § 815(b)(2)(B).

Correctional custody may include confinement at hard labor,

punishment the Supreme Court has recognized as “the military equivalent of imprisonment.” Middendorf, 425 U.S. at

35. Thus, although Reveles was not ultimately subjected to

such punishment, NJP may “involve[ ] an affirmative disabilUNITED STATES v. REVELES 19261
ity or restraint.” Rivera, 194 F.3d at 1068 (citing Hudson, 522

U.S. at 99).

[8] But as the Court stated in Middendorf, “the fact that

confinement will be imposed in the first instance as a result

of [a] proceeding [does not] make it a ‘criminal prosecution.’ ” Middendorf, 425 U.S. at 35-37 (citing various cases

and noting differences between the adversarial nature of criminal proceedings and noncriminal proceedings). This is especially true in the NJP setting where the maximum correctional

custody term is limited to 30 days. 

This factor favors considering NJP to be criminal in nature.

2.2 Whether NJP Has Historically Been Regarded As

Punishment

If a sanction has historically been regarded as punishment,

it is more likely that the sanction is criminal, rather than civil,

in nature. See Hudson, 522 U.S. at 104; Trogden, 476 F.

Supp. 2d at 570.

NJP has historically been regarded as punishment. NJP

originates from proceedings where Navy commanders could

“correct those who are guilty” of rule infractions using a

“Captain’s Mast.” S. Rep. No. 87-1911, at 2 (1962). Harsh

punishment was available under those Captain’s Mast proceedings, including the possibility of lashing, flogging, being

shot out of a cannon, and keelhauling. 

Modern-day NJP also has been historically regarded as

punishment. As noted, NJP includes the possibility of 30 days

confinement at hard labor. See 10 U.S.C. § 815(b). And

although the Captain’s Mast punishments were certainly more

severe than those administered under modern-day NJP, the

fact remains that NJPs are still punishments. See Middendorf,

425 U.S. at 35-37.

19262 UNITED STATES v. REVELES
This factor favors considering NJP to be criminal in nature.

2.3 Whether NJP Requires a Finding of Scienter

“[S]cienter . . . is a traditional requirement of criminal liability . . . .” Noriega-Perez v. United States, 179 F.3d 1166,

1173 (9th Cir. 1999). Thus, if a punishment requires a finding

of scienter, it is more likely to be criminal, rather than civil,

in nature. Id.

NJP does not require a finding of scienter. Although NJP

may result from offenses that include a scienter requirement,

a commanding officer may impose NJP regardless of the

defendant’s state of mind. See 10 U.S.C. § 815; MCM, pt. IV,

¶¶ 16 (failure to obey order or regulation), 59 (conduct unbecoming an officer and gentleman). Reveles’ particular situation confirms this, since a finding of intent was apparently not

required to issue NJP for his infraction. 

This factor weighs against considering NJP to be criminal

in nature. 

2.4 Whether NJP Promotes Retribution and 

Deterrence 

Punishment that furthers the objectives of retribution and

deterrence is more likely to be criminal, rather than civil, in

nature. See Hudson, 522 U.S. at 105; Trogden, 476 F. Supp.

2d at 570.

Although NJP likely deters certain misconduct, that alone

does not render NJP criminal in nature. As the Supreme Court

stated in Hudson, deterrence “may serve civil as well as criminal goals.” Hudson, 522 U.S. at 105 (citing United States v.

Ursery, 518 U.S. 267, 292 (1996)). More importantly, as

“disciplinary” sanctions for “minor” offenses, NJP should not

be viewed as promoting retribution. See 10 U.S.C. § 815(b).

UNITED STATES v. REVELES 19263
This factor is neutral.

2.5 Whether NJP Applies to Behavior That Is Already

a Crime 

If punishment applies to criminal behavior, it follows that

it is more likely that the punishment is criminal, rather than

civil, in nature. See Hudson, 522 U.S. at 105; Trogden, 476

F. Supp. 2d at 570. 

NJP may be imposed for many acts and omissions included

in the MCM punitive articles that are also civilian crimes. See,

e.g., MCM, pt. IV, ¶¶ 54 (assault), 55 (burglary), 57 (perjury). But NJP may also be imposed for many minor offenses

that are not civilian crimes. See, e.g., id., pt. IV, ¶ 13 (disrespect toward a superior commissioned officer); see also Parker v. Levy, 417 U.S. 733, 749-51 (1974) (discussing

differences between civilian and military punishments and

noting that various forms of conduct punishable in the military do not have corresponding civilian crimes). Thus,

although NJP may be administered for behavior that is

already a crime, criminal behavior is not a requirement for the

imposition of NJP.

This factor is neutral.

2.6 Whether NJP Has an Alternative Purpose

Statutes authorizing punishments that have purposes other

than furthering the traditional criminal justice objectives of

deterrence and retribution are less likely to be criminal in

nature. See Hudson, 522 U.S. at 105; Trogden, 476 F. Supp.

2d at 570-71.

As noted, “[n]onjudicial punishment provides commanders

with an essential and prompt means of maintaining good

order and discipline and also promotes positive behavior

changes in servicemembers without the stigma of a court19264 UNITED STATES v. REVELES
martial conviction.” MCM, pt. V, ¶ 1c. Thus, a primary purpose of NJP is to maintain military order, a purpose distinct

from those underlying traditional criminal punishment. 

Indeed, military “discipline is not achieved exclusively or

even primarily through use or threat of the military criminal

law process, the court-martial.” Gammons, 51 M.J. at 178.

“Commanders use a combination of tools to maintain discipline, including leadership by example, training, corrective

measures, administrative actions authorized by applicable regulations, and NJP . . . .” Id.

This factor weighs against considering NJP to be criminal

in nature.

2.7 Whether NJP Appears Excessive Compared to Its

Alternative Purpose 

Statutes authorizing relatively severe punishments are more

likely to be criminal in nature. See Hudson, 522 U.S. at 105;

Trogden, 476 F. Supp. 2d at 571. Here, it is necessary to compare the severity of NJP with its purpose of maintaining military discipline. 

NJP is not excessive relative to this purpose. Congress set

limits on sanctions in the NJP statute, including a maximum

of 30 days confinement at hard labor. A month of confinement is not insignificant, but neither is it excessive when

weighed against the military’s need to maintain strict order

and discipline.

The severity of NJP is especially reasonable, the Government argues, when considered with the military’s mission.

Indeed, the Supreme Court has stated that, when it comes to

military discipline, courts should show deference to the armed

forces because

the rights of men in the armed forces must be conditioned to meet certain overriding demands of disciUNITED STATES v. REVELES 19265
pline and duty, and the civil courts are not the

agencies which must determine the precise balance

to be struck in this adjustment. The Framers especially entrusted that task to Congress.

Burns v. Wilson, 346 U.S. 137, 140 (1953); see also Rostker

v. Goldberg, 453 U.S. 57, 70 (1981) (“Judicial deference to

. . . congressional exercise of authority is at its apogee when

legislative action under the congressional authority to raise

and support armies and make rules and regulations for their

governance is challenged.”). Such deference is a relevant factor when determining whether NJP is excessive relative to the

objective it furthers. 

This factor weighs against considering NJP to be criminal

in nature.

2.8 Conclusion on Rendering NJP to Be Criminal

[9] Although NJP may result in 30 days of confinement at

hard labor and has historically been regarded as punishment,

most of the factors indicate that NJP is noncriminal in nature.

And when considered together, these factors fall short of the

“clearest proof” necessary to “override legislative intent and

transform what has been denominated a civil remedy into a

criminal penalty.” Rivera, 194 F.3d at 1068 (citing Hudson,

522 U.S. at 99). 

3. STATUTORY ANALYSIS CONCLUSION

[10] Congress intended NJP to be noncriminal, and the

effect of the NJP statute is not sufficiently punitive as to render it a criminal penalty. See Rivera, 194 F.3d at 1068 (citing

Hudson, 522 U.S. at 99). Because NJP is noncriminal in

nature, it does not implicate the Double Jeopardy Clause.

19266 UNITED STATES v. REVELES
4. SUPREME COURT PRECEDENT SUPPORTS A

HOLDING THAT NJP IS NONCRIMINAL IN

NATURE

Although the Supreme Court has not spoken directly on

whether NJP is criminal in nature, it addressed a similar issue

in Middendorf. 425 U.S. at 25. In that case, the Court held

that “even were the Sixth Amendment to be held applicable

to court-martial proceedings, the summary court-martial . . .

was not a ‘criminal prosecution’ within the meaning of that

Amendment.” Id. at 34.

A summary court-martial “occupies a position between

informal nonjudicial disposition under [UCMJ] Art. 15 and

the courtroom-type procedure of general and special courtsmartial.” Id. at 32. By contrast, NJP “is an administrative

method of dealing with the most minor offenses.” Id. at 25.

Summary courts-martial can also result in greater sanctions

than NJP, including “one month’s confinement at hard labor;

45 days’ hard labor without confinement; two months’ restriction to specified limits; reduction to the lowest enlisted pay

grade; and forfeiture of two-thirds pay for one month.” Id. at

33 (citing 10 U.S.C. § 820).

Middendorf concerned the Sixth Amendment right to counsel while this case concerns the Fifth Amendment Double

Jeopardy Clause. Still, Middendorf supports the conclusion

that NJP does not implicate the Double Jeopardy Clause.

Because summary courts-martial do not rise to the level of

criminal proceedings and are more criminal in nature than

NJP, it would defy logic, and the Supreme Court holding in

Middendorf, to characterize NJP as criminal. 

CONCLUSION

[11] NJP under 10 U.S.C. § 815 is noncriminal in nature.

Thus, the Government’s criminal prosecution of Reveles was

UNITED STATES v. REVELES 19267
not barred by the Double Jeopardy Clause. 

AFFIRMED.

19268 UNITED STATES v. REVELES