I’ve written, with great interest, about post-Fosler affirmations at the CCAs of Article 134 specifications lacking a terminal element (see, for example, The Future of Fosler). First it was the N-MCCA in Leubecker. Then the ACCA joined in with Roberts. Next was the AFCCA with Martinez. Only the CGCCA has yet to rule that, post-Fosler, an accused can plead guilty to an Article 134 specification lacking a terminal element.
Tomorrow, CAAF will hear oral argument in a case that might change all of that. United States v. Ballan, No: 11-0413/NA, presents the following issue:
Although the crime of indecent acts with a child to which appellant pleaded guilty was not a lesser included offense of the charged crime of rape of a child and thus had not been formally referred to trial by court-martial by the convening authority, whether appellant waived such irregularity by pleading guilty under a pretrial agreement to indecent acts with a child in violation of Article 134, where neither the pretrial agreement nor appellant’s plea at arraignment expressly set forth either potential terminal element for an Article 134 clause 1 or 2 specification, but both elements were discussed and admitted during the providence inquiry.
While the facts of Ballan are a little different from Leubecker, Roberts, and Martinez, where the accused pleaded guilty to a charged, but faulty, specification, it might not matter in the end.
MM2 Ballan was charged with raping a child under Article 120, UCMJ,10 but pleaded guilty under a PTA to the crime of indecent acts with a child in violation of Article 134, UCMJ. The convening authority did not refer an indecent acts charge to the court-martial. Instead, the PTA MM2 Ballan pleaded guilty under simply provided that MM2 Ballan would plead “NOT GUILTY” to the specification under Article 120, but “GUILTY” to the lesser-included-offense (LIO) of indecent act with a child. Appellant’s Br. at 3
The appellant’s brief argues, first, that it was error for him to be convicted of an uncharged offense, and second, that he did not waive his constitutional due process rights.
On the first point, the appellant argues it was error for him to be convicted because the offense of conviction is not a proper LIO of the charged offense, and even if the PTA is read to have constructively charged the offense of conviction, it failed to provide notice of all of the elements.
On the second point, the appellant argues that he forfeited, rather than waived, his due process rights, citing both United States v. McMurrin and United States v. Girouard. He argues:
There was no discussion on the record about the indecent acts specification constituting a new charge, no discussion demonstrating that MM2 Ballan understood and voluntarily waived his due process rights protecting him against pleading guilty to a charge not before the court and to notice. Appellant’s Br. at 14
The government, in a brief you really should read, argues that there is no error.
Relying on United States v. Watkins (which is conspicuously absent from the Appellant’s brief and reply brief), the government distinguishes McMurrin and Girouard as involving charges that were not referred to trial, but were instead adopted solely through an outdated interpretation of the law of lesser-included offenses. The government then argues that the accused had fair notice of the elements, emphasizing this point with discussion of due process as guarding the accused against being surprised, misled, or prejudiced by the charges. In this case, the government argues, the PTA eliminated all of these.
More expansively, the government makes an argument that strikes at the heart of plain-error review:
Applying the plain error framework, an appellate court can only correct a potential error that was not raised at trial if there is (1) error, (2) that is plain, and (3) that materially prejudices the appellant’s substantial rights. . . .
If all three requisites are satisfied, the court has the discretion to remedy the error – “discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of public proceedings.” Only if this heightened standard is met, may the court exercise its discretion and remedy the error. “Meeting all four prongs is difficult.” . . .
The Government recognizes that this Court has not applied the fourth prong——that the error seriously affects the fairness, integrity or public reputation of public proceedings . . .
Nonetheless, if this Court reviews for plain error in this case, the Government respectfully requests that this Court recognize and apply the Supreme Court’s fourth prong in its analysis. . . .
This will align the Court’s plain error analysis with Supreme Court precedent. Similarly, this will engender stability and predictability in the application of plain error analysis. The Government seeks clarity.
Appellee’s Br. at 6-9 (many internal citations omitted).
The government also argues that the error cannot be the harm, stating that this would reduce the third prong (material prejudice to a substantial right) to a nullity.
In a reply brief, the Appellant argues that the court, in the specified issue, “assumed error,” and restates his argument that the PTA did not serve to amend the charge. Additionally, he makes a fall-back argument applying the substantial-basis test for an improvident plea (assuming the court does not find plain-error).
This case is full of good material for oral argument, but I anticipate a focus on the appellant’s due process waiver/forfeiture, or some other source of error to trigger a plain-error review, and on the post-Fosler viability of Watkins.
Also, neither side took advantage of the mobius strip of citation (see Appellant’s Br. at 11 n.39; Appellee’s Br. at 13).