Last week’s oral argument in United States v. Nealy, No. 11-0615/AR, addressed whether an accused can providently plead to an offense that is not a lesser-included offense of a charged offense where there is no pre-trial agreement and the trial military judge does not explain the law of lesser-included offenses (and the corresponding procedural rights that accused could demand).
The appellant’s counsel began her argument with two theories of error: (1) that the military judge failed to ensure the appellant understood that he was pleading to an uncharged offense, and (2) that the court-martial lacked jurisdiction. She also argued that the issue is not one of notice (Miller and Jones were decided before this case was tried), but one of knowing and voluntary waiver of constitutional due process rights. One interesting fact discussed early in the argument was that while the accused pleaded guilty to provoking speech under Article 117, the government proceeded to trial on the merits of the charged offense of communicating a threat under Article 134. She used this fact to argue that there was no constructive referral of the Article 117 offense, because the convening authority not only did not agree to the change, but also directed trial on the original offense.
Judge Ryan asked the appellant’s counsel to assume that the court rejected the jurisdictional claim. Counsel responded that the trial military judge still committed error in that he failed to advise the appellant that he was pleading to an uncharged offense. This raised the question of prejudice, as both Judge Ryan and Judge Stucky tried to identify how the appellant suffererd prejudice to a substantial right. They stated that issues regarding the knowing and voluntary nature of the plea, and the fact that there is a conviction of an uncharged offense, are the error, not the prejudice. Then, Chief Judge Baker (I think) pointed out that the maximum penalty for the 117 offense is far less than the maximum penalty for the 134 offense.
Chief Judge Baker then led a discussion about the jurisdictional question, asking about the need for the convening authority to refer, or otherwise approve, a change under these circumstances.
Counsel for the government began his argument with a discussion of the pleading-elements test (see the argument preview, linked below), arguing that the test is still good law. However, the government conceeded that under the facts of this case, the Article 117 offense is not a LIO of the Article 134 offense. But, he argued, the conviction alone cannot be the prejudice, citing to McMurrin for the principle that the error is not structural (and distinguishing the facts of Jones and Girouard).
Chief Judge Baker asked, “can the defendant charge himself or herself in a court-martial?” (Argument audio at 19:50). The government answered this in the negative, but the ensuing discussion focused on how major of a change can be made to a charge before the convening authority must take some action in referral in order to give the court-martial jurisdiction to try the different offense. The government’s counsel suggested that this is a question the court has not answered.
Finally, the argument returned to the question of constructive referral, and different theories of how the 117 charge could have properly been before the court-martial. The government’s position was that the change from Article 134 to Article 117 amounted to a major change that should be tested for plain error, and that the court-martial did not lack jurisdiction.
In rebuttal the appellant’s counsel argued that the standard of review should be abuse of discretion, and that there was no major change to the charges in this case, based in part on the fact that the government went forward with the original charge. Chief Judge Baker then asked why the court could not presume that the convening authority had intended to refer the Article 117 offense based on the fact that the Manual for Courts-Martial lists it as a LIO of the charged offense, and the convening authority likely relied on this when making his referral decision (separating the issues of a defective charge and a defective referral). The appellant’s counsel answered that there is insufficient evidence in the record to attribute this decision-making process to the convening authority.
• ACCA opinion (unavailable on CCA’s website, Westlaw, or Lexis)
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• Blog post: Argument recap