Indecent acts with a child as an LIO of Article 120
I finally have a few minutes to revisit last week’s CGCCA opinion upon reconsideration in United States v. Holland, __ M.J. ___, No. 1301 (C.G. Ct. Crim. App. Dec. 8, 2009). Petty Officer Holland was charged with carnal knowledge under Article 120, but pleaded to indecent acts with a child instead. Upon reconsideration, Holland argued that under CAAF’s opinion in United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009), indecent acts shouldn’t be considered an LIO of Article 120. Wrong, rules CGCCA.
Writing for a unanimous panel, Chief Judge McClelland emphasized that footnote 7 of CAAF’s Miller opinion indicated that “the parties may agree pursuant to a pretrial agreement that during the plea inquiry the accused will admit his conduct satisfies the requirements of clauses 1 and 2 of Article 134, UCMJ.” Holland, slip op. at 4 (quoting Miller, 67 M.J. at 27 n.7).
The court emphasized that Holland chose to plead guilty to indecent acts with a child as an LIO; “no court is imposing it on him without prior notice to him that it was a possibility.” Id., slip op. at 5.
Interestingly, the Coast Guard Court treated the plea to indecent acts as a major amendment, but one made without objection from the defense. Id. The court also found that the fair notice requirement was satisfied where the accused pleaded guilty after consultation with counsel.
The Coast Guard Court also announced that “notwithstanding Miller, a lesser included offense listed in the MCM remains a lesser included offense.” Id., slip op. at 6. That pronouncement — resolving an issue that CAAF left open in United States v. McCracken, 67 M.J. 467 (C.A.A.F. 2009) — may prove controversial, since it cedes the authority to interpret LIOs to the executive. CAAF may have an opportunity to speak to that issue soon, when it decides United States v. Jones, No. 09-0271/AF, which presents the issue of whether indecent acts is an LIO of rape. Jones was argued on 9 November. The audio is available here.
Not sure how the court reached the conclusion that the President has authority to declare or defne LIOs. His authority is not plenary and is somewhat limited in that he may not create substantive law. Seems to me that defining an LIO is substantive.
Thanks for the commentary on Holland. I thought that the Court went slightly outside the box to give the accused the benefit of the deal he desired and struck with the Government.
I thought that treating the plea as a major change not objected to by the defense was an interesting way to handle the plea to the LIO, but I also thought that it made sense. All in all, I can see how this could open a can of worms in future cases, but applied to its facts, I don’t think that CGCCA was off the mark on this. Perhaps making this an unpublished opinion would have been more appropriate.
So does the CGCCA’s reliance on a footnote in Miller take us away from Medina/Miller/McCracken and back to a pleadings-elements test for LIOs? I don’t think that’s where they want to go, but I then again, I know very little about Coastie World.
The underlying issue reflects a question presented in the concurring opinion in McCracken – what affect, if any, does agreement of parties at trial that offense is an LIO have on greater offense on appeal?
I think the CGCCA was generally correct that Miller/Medina/McCracken are not dispositive and that, as a plea pursuant to a PTA, the issue is largely a matter of a major change. Indecent acts with a minor is not an LIO under the Schmuck elements test even if the President lists it as an LIO. Nevertheless, I suspect in due time we’ll see confirmation that an accused may nevertheless plead to a major change even if the charge is incorrectly referenecd as an LIO.