On Tuesday 13 December CAAF will hear oral argument in United States v. Nealy, No. 11-0615/AR, which presents the following issue:

Appellant was charged with communicating a threat under Article 134, but was convicted pursuant to his plea of using provoking speech in violation of Article 117. In light of United States v. Jones, 68 M. J. 465 (C.A.A.F. 2010) can the conviction be sustained?

The appellant was convicted by a military judge sitting as a general court-martial, pursuant to his pleas, of disobeying a lawful order, aggravated assault, provoking speech, and communicating a threat, in violation of Articles 91, 117, 128, and 134, UCMJ. He was sentenced to reduction to E-1, confinement for five months, and a BCD. The findings and sentence were approved by the ACCA (presumably summarily, I can’t find the opinion), on May 16, 2011.

The appellant was charged with two specifications of communicating a threat in violation of Article 134, but at trial pleaded not guilty to one specification “but guilty of provoking speech, a violation of Article 117.” There was no pretrial agreement.

During the plea inquiry, the military judge advised the appellant of the elements of provoking speech under Article 117, but did not advise him that such offense may not be a LIO of the charged offense.

Before CAAF, the appellant argues that his plea was improvident because the military judge failed to ensure he understood the law and the nature of the charge for which he pleaded guilty. Additionally, the appellant argues that provoking speech under Article 117 is not a LIO of communicating a threat under Article 134, and therefor the court-martial lacked jurisdiction over the 117 offense.

The appellant’s brief analyzes the language of Articles 117 and 134 to conclude that provoking speech under Article 117 requires the following additional elements not required for communicating a threat under Article 134: (1) that the threat be made to another individual subject to the cod, and (2) that a reasonable person would expect that the uttered words would incite some form of physical or verbal response.

The brief then argues that the appellant’s guilty plea cannot be knowing and voluntary because he was not advised by the military judge that he was pleading guilty to an offense that was not charged and is not necessarily included in a charged offense.

Finally, the brief argues that because the offense is not a proper LIO, the court-martial lacked jurisdiction to return findings. This point particularly relies on the lack of a pre-trial agreement.

In its response, the government argues that the appellant waived any error relating to the military judge’s acceptance of his plea to the Article 117 offense because he freely elected to enter the plea, he provided the Article 117 language to the court, he admitted to all necessary facts, and he did not object. Alternatively, the government argues the error was forfeited and a plain-error analysis applies. The government then concedes that, under the circumstances of this case, the Article 117 offense is not a LIO of the Article 134 offense, and that the military judge’s acceptance of the plea constitutes plain error, but argues that there is no prejudice.

However, the government poses a broader argument, which is that the “Pleading-Elements” test set forth in United States v. Weymouth, 43 M.J. 329 (CAAF, 1995), is still the proper method to determine a LIO post-Jones. In Weymouth, Judge Cox, writing for the court, explained:

To summarize our holdings on the law of lesser-included offenses and multiplicity: in United States v. Teters, supra, we adopted the elements test of Schmuck v. United States and Blockburger v. United States, both supra, PP 8 and 9; in United States v. Foster, supra, P 34, we clarified that elements in the lesser offense that are “legally less serious” than elements of the greater offense are included elements; today we clarify that, in the military, those elements required to be alleged in the specification, along with the statutory elements, constitute the elements of the offense for the purpose of the elements test.

United States v. Weymouth, 43 M.J. 329, 340 (C.A.A.F. 1995)

The government then argues that communicating a threat in violation of Article 134 could be charged in such a fashion as to encompass provoking speech under Article 117, permitting the later to be a proper LIO of the former.

Finally, finishing a plain-error analysis, the government argues that the appellant cannot be prejudiced by his own decision to plead to and be convicted of an uncharged offense.

In a reply brief, the appellant attacks the government’s assertion of waiver, noting that the right at issue is the appellant’s fifth-amendment due process right to not be convicted of an uncharged offense, and that there is a presumption against waiver of constitutional rights, unless waiver is clearly established. The appellant also attempts to identify prejudice (if the court applies a plain-error test) as the appellant’s conviction “of an offense not charged.”

A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion, and any questions of law are normally reviewed de novo. However, as discussed above, the government believes CAAF should review questions of law for plain-error due to the appellant’s waiver (the existence of which will be reviewed de novo). I anticipate the oral argument will focus on the the unique facts of this case as they relate to the findings – specifically the question of court-martial jurisdiction – and the standard of review, with some discussion of the post-Jones viability of the Weymouth pleading-elements test.

Case links:
• ACCA opinion (unavailable on CCA’s website, Westlaw, or Lexis)
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief

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