CAAF will hear a second oral argument on Monday 12 December, in United States v. Watson, No. 11-0523/MC. The issues presented are:

I. Whether Appellant’s guilty plea to fraudulent enlistment was provident.

II. Whether an Article 134 clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s recent opinions in Medina, Miller, and Jones.

Note: The court ordered briefs to be filed on Issue I only.

The appellant was convicted, pursuant to his pleas and by a military judge sitting as a general court-martial, of fraudulent enlistment, unauthorized absence, communicating a threat, carrying a loaded firearm in a vehicle, possessing a deadly weapon with the intent to commit assault, communicating indecent language, and possession of child pornography, in violation of Articles 83, 86, and 134, UCMJ. He was sentenced to 42 months confinement, reduction to E-1, total forfeitures, and a BCD.

This case presents a fairly close question regarding the elements of an Article 83 fraudulent enlistment offense, but also ties into CAAF’s defective-pleas theme this term (e.g., United States v. Goodman; United States v. Hayes). The appellant challenges the providence of his plea to fraudulent enlistment based on the trial military judge’s alleged failure to clearly determine that, but for his misrepresentation, his enlistment would have been rejected.

When the appellant was thirteen years old, he received in-patient treatment at a mental health facility. While completing the enlistment screening paperwork, he falsely stated that he had never been a patient in such a facility.

The N-MCCA affirmed the findings and sentence in an unpublished opinion that briefly considered the granted issue and found:

The appellant claims that his guilty plea to a fraudulent enlistment, alleged in the specification to Charge II, is improvident because the inquiry did not establish whether the concealed information actually, as opposed to might have, precluded his enlistment. Appellant’s Brief of 28 Jun 2010 at 33. The appellant misreads the applicable law, however; see United States v. Holbrook, 66 M.J. 31, 33 (C.A.A.F. 2008). We are satisfied that his deliberately concealing his in-patient treatment, several years earlier, at a mental health facility, followed by his enlistment and receipt of pay and allowances, gave the military judge a sufficient factual and legal basis to accept the guilty plea.

United States v. Watson, No. 201000263, slip op. at 4 (N-M Ct. Crim. App., March 29, 2011)

The following exchange occurred during the plea inquiry at the appellant’s court-martial:

[MJ]: Do you believe that Staff Sergeant David relied on the information you provided him . . . pertaining to your past mental health status with the fact that –

[Watson]: I do, sir.

[MJ]: You do believe that?

[Watson]: Yes, sir.

[MJ]: If you had told the truth to the Staff Sergeant, in fact, that you had been an inpatient at some type of mental health. facility, do you believe that may have impacted your ability to enlist in the United States Marine Corps?

[Watson]: I do, sir.

[MJ]: Do you believe that’s a matter that the Staff Sergeant would have inquired additionally?

[Watson]: Yes, Your Honor.

Additionally, a stipulation of fact included the following:

I believe that my enlistment was procured by knowingly concealing the fact that I had been to a mental health facility when I was 13 years old. I believe that this was important information that could have potentially disqualified me from enlisting in the Marine Corps depending on the Doctor’s evaluation of my mental health record.

I do not know whether I would have been enlisted in the Marine Corps if I had told the truth.

The appellant’s brief focuses on the third element listed in the MCM: “That the enlistment… was obtained or procured by that knowingly false representation or deliberate concealment.” MCM, Part IV, ¶ 7.b.(1)(c). The appellant distinguishes this case from United States v. Holbrook, 66 M.J. 31, (CAAF, 2008), where the issue was the failure of the military judge to determine if the accused knew that his misrepresentations about pre-service drug abuse were material (CAAF ruled that there is “no requirement … that the accused actually know anything other than that his answers … are untruthful.”).

However, Holbrook also includes the following statement: “No authority supports the contrary argument, which makes criminal liability turn on whether the untruthful applicant to the armed forces knows that the truth might preclude his enlistment.” Id. at 33 (emphasis added). It’s hard to imagine how this statement is any different if  “might preclude” is changed to “will preclude.”

The government argues that the appellant need only understand that he lied, and need not understand that his lie will definitively prevent his enlistment. This argument, in part, distinguishes between permanently disqualifying factors and factors that may be waived during the enlistment process. The government argues that if the appellant’s position is adopted, a situation could develop where only a lie about a permanently disqualifying condition, and not a lie about something that could be waived, would be an offense under Article 83.

The appellant essentially admits this fact in his reply brief by offering language for a novel specification under Article 134 to encompass a misrepresentation during the enlistment process that would not serve as an absolute bar to enlistment.

CAAF will review the trial military judge’s decision to accept the guilty plea for an abuse of discretion, and will review any questions of law de novo. I anticipate the oral argument will focus on (1) the reach of Article 83, and (2) assuming the appellant prevails on the elements argument, whether it was still error to accept the plea.

Case links:
N-MCCA Opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief

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