United States v. Gary Lee Smith

Gary Lee Smith was charged and convicted on 40 counts of sexual abuse and exploitation of his children in violation of 18 U.S.C. §§ 13 and 2032. Smith appeals his conviction on the grounds that it was obtained in violation of his double jeopardy rights. We review double jeopardy challenges de novo. United States v. Castiglione, 876 F.2d 73, 75 (9th Cir.1988). We affirm.

BACKGROUND

Smith was a sergeant in the United States Army at the time he committed the offenses for which he was convicted. On December 5, 1988, military charges were issued against Smith for substantially the same conduct that would be charged in the federal indictment on December 14, 1988. While both federal and military charges were pending, Smith submitted a request for “Discharge for the Good of the Service” pursuant to Chapter 10 of Army Regulations 635-200. Chapter 10 permits a soldier who has committed an offense subject to a bad conduct discharge to request discharge on this non-punitive basis. In the request for discharge, Smith admitted guilt to the charged offenses “or of lesser included offenses therein which also authorizes the imposition of a bad conduct or dishonorable discharge.” The request was…