The Coast Guard Court’s recent Upham opinion is interesting in a couple of ways but infuriating on a far more important level. See United States v. Upham, __ M.J. ___, No. 1235, 2006 CCA LEXIS 331 (C.G. Ct. Crim. App. 20 Dec 2006).

First the interesting aspects of the case. The decision reversed the aggravated assault conviction of an HIV positive Coast Guard lieutenant who engaged in unprotected and unwarned intercourse with “KB.” The military judge gave the members the following instruction:

You are advised that a person who engages in unprotected sexual intercourse with another person, knowing he is HIV positive, without informing his sexual partner and that his [sic] HIV and without using a condom has committed an offensive touching of that person. Also a person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

Slip op. at 4.

The government conceded and the court agreed that the italicized portion of the instruction was erroneous. The court endorsed the defense’s argument that “whether uninformed, unprotected sexual intercourse while HIV-positive constitutes . . . a ‘means likely to result in death or grievous bodily harm’ [was a question] of fact for the members, and the military judge’s instruction improperly removed [this] issue[] from the court’s consideration.” Id. at 5. The court also agreed with the defense that the military judge’s instruction erroneously took the issue of whether the touching was offensive away from the members. Id. at 6. The court found that the former error wasn’t harmless but the latter was. The court asked, “Is it clear beyond a reasonable doubt that a rational court would have found that KB would not have consented to unprotected intercourse if she had known Appellant was HIV-positive? We think it is.” Slip op. at 7. Okay, so far, so good.

The second interesting aspect of the case is that the military judge who provided the instructions at issue is now the Chief Judge of the Navy-Marine Corps Court of Criminal Appeals, instantly producing a mini-service-split.

Now for the infuriating part. Lieutenant Upham was originally found guilty (pursuant to his plea) of one spec of conduct unbecoming. He was found guilty (contrary to his plea) of one spec of aggravated assault. The members sentenced him to a dismissal, confinement for nine months, and total forfeitures. His court-martial ended on 10 Dec 2004 and the Coast Guard Court issued its opinion two years and ten days later — meaning that his complete term of confinement has long since run. The key issue in this case, as in most military justice appeals, was whether the defense could knock out the punitive discharge.

As a result of its opinion, the Coast Guard Court affirmed the conduct unbecoming spec but reduced the aggravated assault conviction to an assault consummated by a battery. At this point, the question is whether the Coast Guard Court will affirm the dismissal, set aside the dismissal, or remand the case for a new sentencing hearing, n’est ce pas? Well here is the Coast Guard Court’s entire analysis of this key issue:

Reassessment of sentence

Since the sentence adjudged – dismissal, forfeiture of all pay and allowances, and confinement for nine months – exceeded the sentence we now find to be the maximum, the sentence must be reduced. We may affirm only so much of the sentence as we believe the court would have adjudged in the absence of the error; if we are unable to determine what that would have been, we must order a rehearing on sentence. United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are convinced that the court would have sentenced Appellant to no less than dismissal, forfeiture of all pay and allowances for four months, and confinement for four months.

Oh, really? How on earth does the court purport to know this? It doesn’t say.

Back in my days as a military appellate defense counsel, I found few things more frustrating that the appearance of a Sales citation in the CCA opinion in one of my cases. A Sales cite almost invariably meant that I had succeeded in convincing the Navy-Marine Corps Court that the record of trial contained a non-harmless error, but the court was nevertheless going to deny my client any form of meaningful relief. What could be more frustrating? But worse than frustrating, the whole exercise is disingenuous. In a brilliant concurring opinion that deserves far more attention than it has received thus far, Judge Baker recently called attention to the Sales emperor’s nakedness: “Absent clairvoyance, we cannot actually know how a military judge or a panel of members would have sentenced an appellant following a change in factual circumstances. This is especially true within a sentencing construct not based on guidelines or bands, but on discretionary sentence maximums and individualized adjudication.” United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring).

Of course, there is really no good answer to the Sales problem. Even remanding the case for a new sentencing hearing won’t really return the accused to the status quo ante because he won’t have the same members panel sentencing him the second time. We will never truly know what the original sentencing panel would have done. Even if the original trial was in front of a military judge, it is unlikely that the case would be remanded to the same judge in the wake of the years that passed while the case was on appellate review. And even if by some happenstance the case were to return to the very same individual who sentenced the accused the first time, the passage of time will have necessarily altered that individual’s thinking, so again there is no likelihood that the second outcome will be the same as the first outcome would have been but for the error. To quote the Earl of Baltimore, “Everything changes everything.”

Winston Churchill famously quipped that “democracy is the worst form of government, except for all those other forms that have been tried from time to time.” The same can’t be said of Sales. While there is no great solution to the problem, Sales and Peoples aren’t the best of the bad options. In Moffeit, Judge Baker suggests some sound improvements to Sales, though I would go even further than he proposes.

Judge Baker writes: “I believe we are nearing a crossroads on sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986), if we have not already reached it. In my view, we should either reassess the continued viability of the Sales presumption or offer further guidance on its application.” Moffeit, 63 M.J. at 42 (Baker, J., concurring). He then proceeds to do that latter. I would prefer to do the former. Perhaps that explains why Judge Baker is writing in the Military Justice Reporter and I’m sitting in my basement at 2300 angrily typing into a blog.

But even if I would prefer a more radical solution, Judge Baker’s analysis is compelling. He observes:

[T]here are important public policy and legal policy reasons to enjoin a more predictable framework for reviewing sentence reassessments. Among other things, there is considerable societal cost in time, money, and emotional investment when a sentence is reassessed by a Court of Criminal Appeals and then overturned by this Court — sending it back years later for a sentence rehearing. Finality is lost. Sentencing witnesses must be recalled to testify about events long since past. Military members must also be pulled from the line of duty. As a result, I believe we should identify, in a nonexhaustive fashion, factors we will use to review reassessments of the Courts of Criminal Appeals.

In other words, we should identify those factors that buttress the presumption that appellate judges can indeed reassess a sentence for the offense involved. Otherwise, we should consider whether to abandon the presumption altogether. I believe the following nonexhaustive list of factors is relevant:

(1) whether there are changes in the penalty landscape, including instances where charges with significant exposure or aggravating circumstances are taken off the table. United States v. Buber, 61 M.J. 473 (8) (C.A.A.F. 2006);

(2) whether an appellant chose sentencing by members, instead of by military judge alone. As a matter of logic, judges of the Courts of Criminal Appeals are more likely to be certain of what a military judge alone would have done than what a panel of members would have done. Moreover, where an appellant selected sentencing by members, there may be due process considerations if sentence reassessment is conducted by appellate judges;

(3) the nature of the remaining offenses. Are the remaining offenses of the sort that a Court of Criminal Appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial by the military judges or members? Do the remaining offenses fit within a particular normative range based on repetition and scale within a construct of individualized sentencing based on individual offenses? Use or possession of certain drugs and unauthorized absence offenses might fit this category;

(4) whether the Court of Criminal Appeals identified and evaluated the factors that informed its reassessment decision on the record. We should afford greater deference to a clear and logical reassessment on the record.

Id. at 42-43.

Judge Baker’s opinion in Moffeit is less than nine months old, so perhaps it is unsurprising that it has thus far been cited only once, and then for a proposition that is so well-established that it is perplexing why Judge Geiser reached for a concurring opinion to support it. (“Military judges are presumed to know the law and to follow it, absent clear evidence to the contrary. United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F 2006)(Baker, J., concurring in result).” United States v. Atterberry, No. NMCCA 200501564, 2006 CCA LEXIS 168, at *9 (N-M. Ct. Crim. App. 20 July 2006).)

Military appellate defense counsel should aggressively promote Judge Baker’s template and academicians who study the military justice system should analyze it and comment on it. Upham would seem like an excellent opportunity to push the template because the CGCCA opinion would come out quite badly if subjected to Judge Baker’s proposed scrutiny. The reduced offense carried only 1/6 the maximum confinement as the original charge. Even with the other offense on the charge sheet, the maximum confinement would have gone from four years to one year and six months if the offenses weren’t considered multiplicious for sentencing purposes or from three years to one year if they were. Of course, the central issue in this case deals with the dismissal, not confinement. But it would seem that a dismissal would be far more likely if Lieutenant Upham was being sentenced for an act that recklessly endangered someone else’s life than if he were being sentenced for an unwelcome touching. Judge Baker’s second criterion also suggests the inappropriateness of applying Sales in this case: Lieutenant Upham chose to be tried by members. Judge Baker’s third criterion also militates against reassessment: it would seem extraordinarily unlikely that the Coast Guard has a sufficient number of conduct unbecoming/assault consummated by a battery cases to have an established coin of the realm for that combination of offenses. As for Judge Baker’s final criterion, the Coast Guard Court’s application of Sales was entirely unsupported by analysis.

The Coast Guard Court held that the military judge made a serious error at trial that essentially directed the members to convict Upham of aggravated assault. The consequence of that ruling SHOULD be that the Coast Guard must retry that offense with a correct set of instructions (an option that the Coast Guard Court doesn’t even offer to the government) or Lieutenant Upham should receive a new sentencing hearing to determine the appropriate punishment for the reduced offenses. For too long, CCAs have too often avoided the logical implications of their decisions by invoking the quick but disingenuous Sales fix. Just as Moreno held that CCA business-as-usual wasn’t good enough, Upham could be an opportunity for CAAF to endorse Judge Baker’s view that the Sales/Peoples business-as-usual isn’t good enough.

–Dwight Sullivan

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