Does LTC Lakin have a viable legal defense to being punished for an orders violation? Maybe (but probably not) [UPDATED]
Three words for military justice wonkdom: ultimate offense doctrine.
As the Navy-Marine Corps Court has helpfully summarized:
Our superior court has noted that “Articles 92 and 86(1) of the Code may overlap in certain situations involving reporting for military duty.” United States v. High, 39 M.J. 82, 84-85 (C.M.A. 1994). In such situations it has generally been held that an accused’s failure to report for duty, to perform assigned duties, or to refrain from certain activities, is punishable not as an orders violation, but rather as a violation of another punitive Article of the UCMJ. See, e.g., United States v. Peaches, 25 M.J. 364 (C.M.A. 1987); Loos, 4 USCMA 478, 16 C.M.R. 52; United States v. Battle, 27 M.J. 781 (A.F.C.M.R. 1988); and United States v. Lattimore, 17 C.M.R. 400 (A.B.R. 1954).
United States v. Hinkle, 54 M.J. 680, 683 (N-M. Ct. Crim. App. 2000) (footnote omitted).
Consider the first two specifications of Charge II (charge sheet available here). They allege that LTC Lakin violated two different orders to report to his brigade commander’s office on 31 March 2010. What is the ultimate offense in that scenario? A failure to go under Article 86(1). If the ultimate offense doctrine applies, then his offense is punishable as a failure to go, not as a violation of a lawful order.
If the ultimate offense doctrine does apply, the maximum confinement for those two specs would drop from six months to one month. (As I’ve previously discussed, under CAAF’s case law, LTC Lakin can’t be punished for violating both Spec 1 and Spec 2 of Charge II. United States v. Wingate, 50 M.J. 118 (C.A.A.F. 1998) (summary disposition).)
But LTC Lakin probably can’t rely on the ultimate offense doctrine. Here’s why. There’s an exception to the ultimate offense doctrine where the individual issuing the order “support[s] a routine duty with the full authority of his office,” thereby “lift[ing] it above the common ruck–and thus remov[ing] the failure to perform it from within the ambit of Article 86.” United States v. Loos, 4 C.M.A. 478, 479-80, 16 C.M.R. 53, 54-55 (1954). You know those moments when you’re issuing an order and you grab the tip of your collar, pull it out, and ostentatiously display your rank insignia to the subordinate to whom you’re giving the order? The ultimate offense doctrine doesn’t apply there, because you are invoking your status, thereby making the offense not a UA, but a willful disobedience of a superior commissioned officer, warrant officer, NCO, or petty officer, as the case may be. (Of course, for reasons that don’t seem apparent to me, the government didn’t charge the failure to go as a violation of a superior commissioned officer’s order, but rather as the less serious failure to obey a lawful order.) NMCCA has observed that this exception to the ultimate offense doctrine typically occurs “where an accused has already expressed an unwillingness to perform certain duties or to return to his place of duty, or has directly refused to obey the order. They generally involve a situation where there has been a direct and obvious thwarting of military authority.” Hinkle, 54 M.J. at 683. It’s hard to more directly and obviously thwart military authority than by posting on YouTube a video announcing an intention to disobey all orders. So my guess is that in issuing the order that is the subject of Charge II, Spec 1, LTC Judd probably emphasized that COL Roberts was demanding, in his capacity as LTC Lakin’s brigade commander, that LTC Lakin show up at his office as ordered. If so, then the ultimate offense doctrine doesn’t apply and LTC Lakin can be punished for an Article 92 violation rather than an Article 86(1) violation.
Spec 3 of Charge II is also potentially vulnerable to an ultimate offense doctrine challenge. Here, such an argument may well prevail. The spec alleges that LTC Lakin violated a written order. It isn’t apparent how a written order can stroke the rank insignia of its issuing officer. So the ultimate offense doctrine probably does apply here, making Charge II, Spec 3 punishable by only 1 month of confinement rather than 6. But that probably won’t affect the maximum authorized sentence. Spec 3 alleges the same ultimate offense as Spec 4 — a willful dereliction of duty charge. I’ve previously noted that under an unpublished ACCA decision, Specs 3 and 4 — alleging both an orders violation and a willful dereliction of duty for failure to do the same act — constitute an unreasonable multiplication of charges. United States v. Abner, No. ARMY 9901209 (A. Ct. Crim. App. Jan. 6, 2003). But in a very analogous case, CAAF has rejected an “ultimate offenses”-type challenge to application of the maximum punishment for willful dereliction of duty where the gravamen of the offense was actually a failure to go. United States v. Ame, 37 M.J. 170, 173 (C.M.A. 1993). (Under Ame, if the government can prove the willfulness element for a willful dereliction, it can multiply a failure to go’s maximum confinement by six plus get a BCD. Simply alleging a failure to go as a negligent dereliction multiplies the maximum confinement by three.) So the 6-month confinement max for willful dereliction of duty will almost certainly apply for the pair of offenses alleged by Specs 3 and 4.
So let’s review. LTC Lakin can probably be found guilty of either Charge II Spec 1 or Spec 2, but not both. Assuming that the government has sufficient evidence to overcome the ultimate offense doctrine, the maximum confinement for that pair of offenses will be six months. LTC Lakin probably can’t be found guilty of both Spec 3 and Spec 4 of Charge II. The government will choose to retain a finding of guilty to Spec 4, resulting in another possible 6 months of confinement. So the max punishment for Charge II and its specs will likely be a dismissal, forfeiture of all pay and allowances, and confinement for 1 year (plus maybe a fine).
As we’ve previously discussed, the government may not be able to prove Charge I. The charged offense requires that LTC Lakin missed the movement of an aircraft with which he was required in the course of duty to move. To win a conviction, the government would have to prove that LTC Lakin had a duty to be on the particular USAirways flight alleged on the charge sheet. But those in receipt of itineraries including commercial flights are generally authorized to change those flights. It seems unlikely that a flight from BWI to Charlotte, NC, is the only way LTC Lakin could have gotten from the Washington, DC, area to Fort Campbell, Kentucky. Now, given the history of the case, it’s certainly possible that some superior authority said to LTC Lakin words to the effect of, “You had better have your rear end on a seat on USAirways flight number 1123 leaving BWI Airport at 0840 hours on 12 April 2010!” (Thanks, Mr. Lowrey!) If so, he can be found guilty of missing movement. But if he wasn’t given a thou-shalt-not-change-thy-flight order, he probably can’t be found guilty of missing movement and his maximum confinement exposure will be a year. See United States v. Kapple, 40 M.J. 472, 473-74 (C.M.A. 1994).
But let’s say that LTC Lakin did receive such a thou-shalt-not-change order. What’s his maximum confinement exposure then? That situation is anomalous. Missing movement is really just the means by which LTC Lakin committed the offense that the government really cares about — failing to report to Fort Campbell as ordered. No one really cares that LTC Lakin wasn’t on a particular USAirways flight from BWI to Charlotte. And yet the spec alleging the means is punishable by four times the maximum punishment of the spec alleging the ultimate offense. Can LTC Lakin be separately convicted and punished for both the means by which he committed the offense and the ultimate offense? Under CAAF’s case law, yes. CAAF has specifically rejected multiplicity for findings challenges in a means/ultimate offense context. United States v. Teters, 37 M.J. 370 (C.M.A. 1993). And, in a post-Teters case, CAAF has held that “Congress intended to permit separately punishing the offenses of willful disobedience and missing movement.” United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995). That would likely preclude a ruling that Charge I and its spec are multiplicious for either findings or sentencing purposes with Charge II, Spec 3 or 4. Judge Lind could rule that missing movement and either violation of a lawful order or willful dereliction of duty constituted an unreasonable multiplication of charges under the five Quiroz factors, but probably wouldn’t, especially since a necessary predicate to a finding of guilty for missing movement would be a firm indication to LTC Lakin that he’d better be on that particular flight. Additionally, it’s apparent that the government didn’t allege both the missing movement and the Article 92 offenses as a cynical means to increase LTC Lakin’s potential confinement; as previously mentioned, had the government been trying to maximize LTC Lakin’s confinement, it would have charged the orders violations under Article 90 rather than under Article 92.
So, if the government can prove missing movement, then LTC Lakin’s maximum possible punishment will likely be a dismissal, confinement for three years, and total forfeiture of pay and allowances. (I could also see the government making a plausible argument for a fine in this case.) If the government can’t prove the missing movement, then the maximum possible punishment will be a dismissal, confinement for one year, and total forfeiture of pay and allowances — plus, maybe, a fine.