During the oral argument at CAAF on Monday 12 December in United States v. Watson, No. 11-0523/MC, the court considered whether the appellant’s plea to fraudulent enlistment was provident.
The appellant’s counsel discussed two different fraudulent enlistment rules: (1) the absolute-bar-to-enlistment rule; and (2) the initially-disqualified, need-a-waiver rule. While he argued that the appellant’s plea was improvident under either rule, because he set up a matter inconsistent with the plea, he urged the court to adopt the absolute-bar-to-enlistment rule. This rule would require a prosecution for fraudulent enlistment involve a misrepresentation of a fact so disqualifying that, were it disclosed, the applicant would be absolutely-barred from enlistment. In the words of the appellant’s counsel at the beginning of the argument:
The very purpose of the statute is not simply to punish those who misrepresented themselves during the enlistment process, but rather to punish those who receive pay and allowances … from the government that they otherwise were not entitled to receive – would never have received under any circumstances. Argument audio at 2:00.
The appellant’s counsel admitted that there is nothing in the text of the statute that requires the absolute-bar rule, but argues that it flows from the court’s precedent, and that it makes sense based on the language of the statute.
However, the appellant’s counsel reiterated that under either test the plea was improvident because of an inconsistency, specifically that the appellant admitted (during the inquiry and in a written stipulation) that the misrepresentation “may have” and “could have” impacted his ability to enlist (and not “would have” or “did”). However, he also conceded that during the plea inquiry the appellant did admit to all of the elements of the offense.
The court sounded unconvinced and ready to resolve this case by finding no inconsistency, but the argument returned to the two rules, and Judge Ryan commented: “in the absence of a waiver, [the appellant] is ultimately disqualified. It’s a disqualification absent a waiver. And he didn’t get a waiver.” The appellant’s counsel agreed with this, and responded: “that’s a good way to put it for the government.” Argument audio at 10:45.
The government’s counsel argued that if the court were to adopt the appellant’s absolute-bar-to-enlistment rule, it would eviscerate Article 83 as a means to prosecute those who lie to gain entry to the armed forces.
On the matter of an inconsistency, the government’s counsel argued not only that there is no inconsistency, but that the appellant admitted all that he possibly could – there is no way the appellant could have known if he would have been absolutely disqualified, or if he would not have received a waiver. He could only (after reviewing the regulation with counsel prior to entering his plea) admit that his misrepresentation was material and that without it he may have been denied enlistment. The offense, the government argued, is not from the perspective of the accused, it is from the perspective of the service.