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UNITED STATES v. VOLPE

November 25, 1997

UNITED STATES OF AMERICA
v.
ANTHONY M. VOLPE



The opinion of the court was delivered by: SCANLON

 Currently before this Court is defendant's motion to dismiss the charge of driving while intoxicated pending against him. The prosecution opposes the motion.

 BACKGROUND

 On April 20, 1997, defendant, a soldier in the United States Army ("Army"), was driving on North Memorial Avenue in Fort Drum, a federal military installation that is located in Jefferson County, New York, and within the special territorial jurisdiction of the United States. Defendant, the prosecution asserts, was stopped after the vehicle he was driving crossed over the median. The officer who stopped defendant allegedly detected the odor of alcohol on his breath. Having failed a field sobriety test, according to the prosecution, defendant was transported to the facility's Provost Marshall's Office, where he registered a .12% BAC after having taken a breathalyser test. He was charged with driving while intoxicated under 18 U.S.C. § 13 and New York Vehicle and Traffic Law §§ 1192(2), (3), as well as failure to maintain a single lane of travel and aggravated unlicensed operation.

 Following his arrest defendant maintains that his "Single Soldier Initiative" ("SSI") privileges were canceled, though the prosecution claims that the privileges were suspended for one month only. As a result of the loss of privileges, defendant was forbidden from leaving post without prior written approval of his company commander and was also limited as to visitors, dress code and other issues even during off duty hours. [Defendant also claims that as a result of his arrest his on-base driving privileges were suspended for one year, he was given a letter of reprimand; he was "flagged"--which means that no positive personnel action may be made on his behalf pending the outcome of his case; and his previously approved promotion in rank was canceled. Concomitant with the loss of his promotion, defendant contends, was his loss of an increase in pay and responsibilities.] *fn1" Defendant contends that the Army's actions violate the United States Constitution's Double Jeopardy Clause, wherefore he seeks a dismissal of the charges pending against him.

 In a Decision and Order dated July 24, 1997 Magistrate Judge Daniel Scanlon Jr., held defendant's motion to dismiss in abeyance pending filing of supplementary briefs by both parties on the issue of how his loss of "SSI" privileges affected his rights vis-a-vis the Double Jeopardy Clause.

 DISCUSSION

 The Double Jeopardy Clause provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. Once jeopardy attaches, Double Jeopardy clause protects criminal defendant in three ways: (1) it protects against second prosecution for same offense after acquittal; (2) it protects against second prosecution for same offense after conviction; (3) and it protects against multiple punishments for same offense. U.S. CONST. amend. V; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969); United States v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 1897, 104 L. Ed. 2d 487 (1989). The question presented in this instant matter is whether in light of the Army's actions, the Court's trying of defendant would constitute a multiple punishment for the same offense.

 In examining the nature of Double Jeopardy in the military context, the Second Circuit recently held:

 
Where the government, acting as employer of members of the armed forces, disciplines a member by using measures that are available to private employers, and are not uniquely within the government's power to punish for criminal wrongdoing, such discipline ordinarily will not constitute "punishment" within the meaning of the Double Jeopardy Clause.

 United States v. McAllister, 119 F.3d 198, 201, (2d Cir. July 17, 1997).

 The facts in McAllister closely mirror those in this matter. McAllister was a soldier based in Fort Drum and he was charged pursuant to 18 U.S.C. § 13 with operating a motor vehicle while intoxicated. While the charges were pending, the Army imposed a series of administrative sanctions against him, which included a suspension of his on-base driving privileges pending the adjudication of his criminal charge. He also received a general letter of reprimand, a reduction in rank from corporal to specialist, and a bar to re-enlistment. The Second Circuit concluded that the actions taken by the Army against McAllister were "not the type of 'punishment' that triggers the protection of the Double Jeopardy Clause and bars further punishment." Id. at 200. It reasoned that these actions did not require the use of "sovereign power" nor did they "invoke the power of the state to punish in the manner of a sentence of imprisonment"; rather, the Court viewed the Army's actions as "measures . . . regardless of whether they had any punitive intention, [that] were sanctions that a private employer could impose on an employee who has endangered safety by drunken driving on the employer's premises." Id.

 Whether defendant's prosecution will offend the Double Jeopardy Clause, therefore, turns on whether the Army's disciplinary actions are within the ambit of those that a similarly situated private employer might enjoy. In light of McAllister, clearly the suspension of defendant's on-base driving privileges, letter of reprimand and administrative flagging do not constitute the type of punishment "intended in the sense by the Double Jeopardy Clause." Id. Furthermore, the cancellation of the promotion was dealt with in the Decision and Order of July 24, 1997.

 The suspension of defendant's "SSI" privileges, however, requires additional analysis by the Court. Though the Army obviously may revoke these privileges, the question presented is whether such a revocation runs afoul of the Double Jeopardy Clause when a soldier is not permitted to: leave post without prior written approval of his company commander; have visitors on off-duty hours; wear civilian clothes; or otherwise be free of interference in personal choice during non-working hours. It has not been the experience of the Court that a private employer may either, limit the travel of an employee to the employer's premises, or restrict his off-duty activities, as a means of sanctioning that employee. The prosecution argues that "service in the military is a unique occupation with special job requirements. Military service requires availability 24 hours per ...


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