CAAF heard oral argument last week in the case of United States v. Hayes, No. 12-0090/AF (not to be confused with United States v. Hayes, No. 11-5003/NA, __ M.J. __ (CAAF, 2012)), which presents the following seemingly-innocuous question:

Whether the military judge erred in denying appellant’s motion to dismiss for failure to state an offense, where the specification omitted reference to a required element under state law for a finding of guilty for wrongful consumption of alcohol while under age 21.

But the case and the issues it raises are hardly innocuous.

The appellant was convicted in 2009, contrary to his pleas, by a general court-martial composed of officer members, of one specification of dereliction of duty by willfully failing to refrain from drinking alcohol while under the age of 21, and six specifications of wrongfully distributing controlled substances (marijuana and cocaine). He was also convicted of one specification, in accordance with his plea, of wrongfully using marijuana. He was sentenced to a bad-conduct discharge, confinement for two years, reduction to E-1, and total forfeitures. The convening authority approved the sentence as adjudged.

Here’s where it gets interesting. In the dereliction specification the government alleged that the appellant was derelict in the performance of his duties “in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.” During the Article 32 investigation, several witnesses testified that they saw the under-21 appellant consume alcohol at various locations in or near Las Vegas, Nevada. The government then argued that it intended to prove dereliction because Nevada Revised Statute 202.020 imposed a duty on the appellant to not consume alcohol, in a public place, if under 21, and that the Luxor Hotel in Las Vegas (where the appellant was seen drinking) was a public place. And prove it they did.

So the appellant was convicted of violating Article 92 for drinking when under 21, not because an order or rule prohibits it (apparently – and amazingly – the Air Force had no such order), but because it is, the government maintains, a custom of the service to follow state laws. However, the appellant argues that the specification is deficient because it does not actually allege that his consumption of alcohol while under the age of 21 was illegal under Nevada state law (note: I don’t see the verbatim text of the specification in the briefs; if someone has it, please post it in the comments). Update: The specification is in the CCA’s opinion and reads:

That [the appellant] who knew of his duties at or near Las Vegas, Nevada from on or about 1 June 2008, to on or about 30 September 2008, was derelict in the performance of those duties in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

If this is starting to make your skin crawl, some history is in order. I give you the words of Chief Justice William H. Rehnquist:

In an unbroken line of decisions from 1866 to 1960, this Court interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused. … In 1969, the Court in O’Callahan v. Parker departed from the military status test and announced the “new constitutional principle” that a military tribunal may not try a serviceman charged with a crime that has no service connection. … On reexamination of O’Callahan, we have decided that the service connection test announced in that decision should be abandoned.
Solorio v. United States, 483 U.S. 435, 439-441 (1987) (citations omitted).

To paraphrase, as recently as 1987 court-martial jurisdiction required that the charged offense be serviced-connected. For example, “the interest of the military in the sale of a small amount of a contraband substance by a military person to a civilian for the latter’s personal use seems attenuated.” U. S. v. Trottier, 9 M.J. 337, 350, N. 28 (CMA, 1980). The Supreme Court abandoned that rule in Solorio (a 5-to-4 ruling), returning to the rule that jurisdiction at court-martial is based on the status of the accused. Now, a quarter-century later, CAAF considers just how far that pendulum has swung, as an Airman stands convicted of dereliction for merely violating a state law.

It took more than 30 minutes of the 40-minute oral argument (all of the appellant’s unreserved time, and much of the government’s time) before the following exchange occurred:

Argument audio at 31:50

Senior Judge Effron: Is it the government’s view that Article 92, in this sense, picks up everything that’s not covered by Article 134 Clause 3, that is 134 Clause 3 are crimes and offenses not capital, and that phrase in Article 134 Clause 3 is typically, traditionally picked up state law through the Assimilative Crimes Act in Title 18? So, is it the government’s view that any state statute that’s violated – that’s a crime, non-capital crime – that’s not picked up by Article 134 Clause 3, is a violation of Article 92? That every service member has the duty to obey – a military duty to obey –  every state law, in every state that they happen to be in, no matter how brief the period in time?

Government’s counsel: Yes, your honor.

S. J. Effron: So that if you go from a resort on one side of Lake Tahoe to the other side of Lake Tahoe, if my geography is correct, it may be permissible to do something on one side but not on the other, and you have a military duty to know the difference between the state laws in the two places.

Gov’t Counsel: I don’t think that’s a particularly heavy burden. That’s the requirement of every citizen. Yes, your honor. While there may be the additional possibility of a military member being charged with dereliction of duty, that’s a matter that has been determined appropriate.

S. J. Effron: So that, in other words, that’s the government’s position, that every violation of state law is not simply your duty as a citizen to know that and be subject to civilian prosecution, but you’re also subject to military prosecution. Indeed, under the Double Jeopardy Clause you could be prosecuted in both.

Gov’t Counsel: I think that possibility does exist your honor. In practicality, I don’t think it’s a concern. And I – you know the Manual specifically states that the duties may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service, and here we’re referring to a statute.

S. J. Effron: It says may be imposed, it appears that the government’s position is that it is imposed. Every statute of every state that establishes a – in fact it doesn’t say criminal law then – you could have civil penalty statutes. Why wouldn’t they also be swept under this?  In other words, every state in which you have a civil penalty, or a civil requirement to do something, does that now become a military duty because there’s a state statute and, as you said, as a citizen you’re under an obligation to follow state law? So, if there’s state statutes, for example, as to how you should paint the front door of your house, etc., if you’re in a particular condominium (we could go on and on), you have a military duty because there’s a state, county, or local ordinance that you’ve got to follow that you’ve not followed, and that you’ve violated your military duty by not following state law?

Gov’t Counsel: Yes your honor, and I’m sure that I could come up with more draconian possibilities as well, but the point is here that it has been determined that insofar as military members are concerned, this is important. And I think that makes the common sense reasoning.

I’m editorializing here, but this is really, really scary. Three felonies a day is bad enough, now I have to worry about a dereliction charge if I go to the North Carolina Museum of Art and photograph a work of art on loan to the museum (07 NCAC 03B .0104)?

Of course, CAAF’s review of this case is far more narrow. The Nevada statute at issue only prohibits underage drinking in public places, that fact wasn’t alleged in the specification, and the appellant challenged the specification at trial. At the end of the government’s oral argument, Judge Ryan asked: “If we believe that the duty isn’t simply that a person under 21 years of age who purchases or consumes any alcoholic beverage, if we think that that’s not the duty but rather that the duty is – continues on as the statute does – ‘in any saloon, resort, or premises.’ If we think that that’s the duty, do you agree that if that’s the case the military judge should have dismissed this specification?” The government’s counsel answered simply: “Yes, your honor.” Argument audio at 38:35.

The panel was pretty hostile (the word “incredulous” comes to mind) to the government’s position at oral argument, and I feel safe saying that this specification will be dismissed. However, it’s not likely to result in any sentencing relief to the appellant, considering his other, far more serious offenses.

But since the only remaining member of the Supreme Court who participated in Solorio is Justice Scalia (who joined the Chief Justice’s majority opinion), there’s something to be said for the government’s position. If the government wins in Hayes, maybe SCOTUS takes another look at just how far the UCMJ can reach into our civil lives in this 21st-century, all-volunteer, professional force.

Case Links:
AFCCA’s opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Oral argument audio
Argument recap

19 Responses to “Argument Recap: United States v. Hayes, No. 12-0090/AF”

  1. Cap'n Crunch says:

    A second speeding offense in some states within a year constitutes a 4th degree misdemeanor.  Are we to presume that Article 92 is violated by such an offense?  Essentially they are converting state misdemeanors into federal felonies.  And who in the Government Appellate Shop thought this one through? 

  2. Socrates says:

    The first serious question I have is what duty a Government appellate attorney has, in good faith, to vertically check the executive chain, and laterally check with other departments, before expressing “the government’s view,” using Senior Judge Effron’s language?
    Because, did the Government counsel really say that “it is the Government position” that using the UCMJ to prosecute military members for violating state law is “important,” and that it makes for “common sense reasoning”?
    This is somewhat of a procedural question, but to what extent is the Government attorney permitted to assume the role as spokesman for the “government.”  (I know the obvious answer is because that’s his title…but does he need to feel somewhat confident, or have a good-faith basis to believe that this opinion is shared by, say, Secretary Panetta, or chairman of the Joint Chiefs Gen. Martin Dempsey?
    Because this is a novel issue, I don’t see how such an assertion can be made.  I don’t know, but maybe the Appellate Government chain-of-command is required to do such checking before making an argument such as this?

  3. Socrates says:

    The second serious question I have is did anybody in the “Government’s” appellate shop really scrutinize this issue and think in broader terms beyond the context of this one drinking offense?  [Did they exchange – a walk-on part in a war – for a lead role in a cage?]

    Didn’t CAAF’s Fry opinion from just the other day place a wall of separation between state law and the UCMJ?
    If the “Government’s position” really is that using the UCMJ to prosecute military members for violating state law is “important,” and that it makes for “common sense reasoning,” then that position is stupid.

    Warning to “Government” attorneys, do not read the following…and Seabees, start building some Confinement Facilities:

    In Alabama, it is an offense to open an umbrella on a street or to play dominoes on Sunday. In Alaska, moose may not be viewed from an airplane. In Arizona, it is unlawful to refuse a person a glass of water or to have more than two dildos in one house.  In Arkansas, it is strictly prohibited to pronounce “Arkansas” incorrectly.  In addition, a man can legally beat his wife, but not more than once a month.  In California, women may not drive in a house coat and you cannot throw a Frisbee on the beach without a lifeguard’s permission.  In Colorado, it is illegal to shop for cars on a Sunday. In Connecticut, it is illegal to dispose of used razor blades. In Delaware, it is illegal to fly over any body of water, unless one is carrying sufficient supplies of food and drink. Florida law considers it an offense to shower naked, prohibits unmarried women from parachuting on Sunday, and forbids farting in a public place after 1800. In Georgia, all sex toys are banned. In Hawaii, you may only have one alcoholic drink in front of you at a time. In Idaho, it is illegal for a man to give a woman a box of candy weighing less than fifty pounds, and for anybody to ride a merry-go-round on Sunday.  In Illinois, you may be arrested for vagrancy if you do not have at least one dollar bill on your person, and it is illegal to wear sagging pants. In Indiana, anyone 14 or older who profanely curses, damns or swears by the name of God, Jesus Christ or the Holy Ghost, shall be fined one to three dollars for each offense, with a maximum fine of ten dollars per day; and a man over the age of 18 may be arrested for statutory rape if the passenger in his car is not wearing her socks and shoes, and is under the age of 17. In Iowa, kisses may last for no more than five minutes, and a man with a moustache may never kiss a woman in public. Also, one-armed piano players must perform for free.  In Kansas, pedestrians crossing the highways at night must wear tail lights, and no one may catch fish with his bare hands.  It is illegal to fish with a bow and arrow in Kentucky. In Louisiana, it is illegal to gargle in public places and you will be fined $500 fine to instruct a pizza delivery man to deliver a pizza to your friend without them knowing.  In Maine, shotguns are required to be taken to church in the event of a Native American attack; you may not step out of a plane in flight; and after January 14th you will be charged a fine for having your Christmas decorations still up. In Maryland, it’s illegal to grow thistles in your yard. Massachusetts law prohibits shooting at targets that depict human figures, human effigies, human silhouettes or any human images thereof,” and requires that all men must carry a rifle to church on Sunday.  In Michigan, a woman isn’t allowed to cut her own hair without her husband’s permission.  In Minnesota, it is illegal to sleep naked, or, to stand around any building without a good reason to be there. In Vermont, it is illegal to deny the existence of God.  In Virginia, it is illegal to tickle women; drivers must honk their horn while passing other cars; it illegal to have premarital sex, to have sex with the lights on and to have sex in any position other than missionary.

  4. PhilCave says:

    I’m advised that late last year the Marines at Quantico were taking disciplinary action for “reckless endangerment” against Marines with speeding tickets on I-95, where they were driving over 80.  This would be in addition I suppose to the state court proceedings (no double jeopardy).  In VA it is considered reckless driving to exceed 80 and/or drive 20 MPH over the posted limit.  It is a class 1 misdemeanor.  This is the same base that earlier was doing NJP for DUI cases that were prosecuted in federal court.

  5. stewie says:

    We always talk about the Good Idea Fairy, well, this is her sister, the Bad Idea Fairy.

  6. terminal velocity says:

    How did this spec make it through the vetting process and survive at trial?  It’s always scary when the G wants to make new law, especially when there is no tactical, operational, or strategic need to do so. Maybe the TC in this case thought all of the narcotics charges were weak and wanted a BS underage drinking charge as a contingency of proof – but even if that was the case the spec smacks of ridiculous overreaching.  A wise MJ once said a charge sheet should not look like a law school examination where every possible theory of culpability is enumerated.

  7. PhilCave says:

    TV:  It’s not unusual in AF cases to see them take a solid set of serious charges and add on something minor or “unusual,” which usually then takes up an inordinate amount of time at trial and on appeal.  From experience I’m quite certain the prosecutors took a lot of time researching and preparing the charge, and then would have argued vigorously and vociferously that the theory of prosecution was OK.  So I think, TV, your thought about a vetting process is the reverse; they vet to see how much they can creatively pile on.  The MJ and AFCCA agreed, so what’s to stop future TC’s continuing to be creative and expanding their work.  More work means justification for “we need a lot of lawyers” when it comes to personnel decisions and cuts; and then there’s the “creative lawyering” bullet on the OPR.

  8. Cloudesley Shovell says:

    To follow on what Phil Cave says above, why keep a drug dealer on appellate leave while you fight about some BS underage drinking charge?  Why even pollute a drug distribution case at trial with an underage drinking charge?  What a colossal waste of time and resources. 
    All it would have taken is for one person with a shred of common sense to stand up and wave the BS flag somewhere, anywhere during the trial stage, and this charge would have disappeared long before this case came up on appeal. 

  9. Zachary Spilman says:

    All it would have taken is for one person with a shred of common sense to stand up and wave the BS flag somewhere, anywhere during the trial stage, and this charge would have disappeared long before this case came up on appeal. 

    Other than the trial defense counsel, right?

    why keep a drug dealer on appellate leave while you fight about some BS underage drinking charge?

    To set a precedent.

  10. Socrates says:

    Zachary, good point on the responsibility of the defense counsel to more aggressively fight back here.
    The only thing I would add is that the unstated issue is prosecutorial discretion, which the defense can’t really enforce. Whether it’s the perfunctory “false official statement” charge for reflexively saying “no,” a “conspiracy” charge for passing a joint, a “missing movement” charge when the ship changes piers, a desertion charge when a member has been gone for 30 days, enticing someone over the nearby state border to fabricate an interstate offense, or what-have-you, some charges are just gratuitous add-ons or adventurous theories. I realize that my post about stupid state laws is just argumentum ad absurdum, but I would prefer that criminal liability be grounded in principle, rather than government whim. [E.g., Government counsel’s response to CAAF that although Art 134 prosecutions for violating a mere ordinance is a theoretical problem, it’s not a “practical” issue. That’s not good enough for me. Somewhat like depending on the unreliability of relying on the discretion of the police or prosecutor in Papachristou v. Jacksonville, 405 U.S. 156 (1972).] 

  11. Dew_Process says:

    I’m not sure that the Spec states an offense in any event because the statute simply does not create any “duty” period.  It reads in relevant part:

    “Any person under 21 years of age who . . . consumes any alcoholic beverage in any saloon, resort or premises where spirituous, malt or fermented liquors or wines are sold is guilty of a misdemeanor.”

    It punishes the conduct consuming alcohol by someone under 21 in any “saloon, resort or premises” etc., as a misdemeanor, where the booze is sold. 

    But, there is no statutory duty not to drink if you’re under 21 – what if a 20 year old is at home and his parents give him/her a glass of wine with dinner,  or if you’re a person of faith that uses real wine in communion?  The crime here is drinking someplace where booze is “sold.”  It would not be illegal under the provision at issue for a 20 year old to brew beer in his apartment and drink it – but under the AF’s interpretation of the statute, you’d have a “duty” not to drink it until your 21.

    The idea that the Air Force has a “custom” to follow state laws is absurd, if not a fraud on the court.  For example, State A has a law that requires all POV’s to have an annual comprehensive safety inspection – but if you’re an airman whose car and you are from State B that has no such requirement, the AF doesn’t tell you, well you can’t get a base pass for your POV until you comply with State A’s laws on having your car inspected every year.

    Or, if you’re transferred from Florida to California, they under their logic you would have to get California license plates and driver’s license because that’s what California law requires.

  12. Zachary Spilman says:

    I’ve updated the post with the text of the specification, which is in the CCA opinion and reads:

    That [the appellant] who knew of his duties at or near Las Vegas, Nevada from on or about 1 June 2008, to on or about 30 September 2008, was derelict in the performance of those duties in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

    Socrates, I mentioned the trial defense counsel because the defense objected to the specification at trial as failing to state an offense. So, there was at least “one person with a shred of common sense to stand up and wave the BS flag.”

    Dew Process, the trial military judge and the CCA disagree with you, as both found that the specification does state an offense. The appellant’s argument (all along, I think) is, essentially, that the specification needs to include more of the state law. I don’t see why that argument suddenly wins at CAAF, but the court could agree with this, reverse in this case, and create a procedural rule for incorporation of state laws in dereliction specifications. Talk about going from bad to worse.

    Alternatively, CAAF could rule that the specification fails to state an offense because violating a state law is not, without more, dereliction in violation of Article 92, and therefore the evidence is not legally sufficient to sustain a finding of guilty. Then we can all breathe a little easier.

  13. Socrates says:

    Zachary, go it.  For a brief moment I thought this was a jurisdictional issue that could be brought up sua sponte at any level, including appellate.  BZ to Trial Defense Counsel.

  14. Dew_Process says:

    ZS – Perhaps I missed it, but I don’t see where the statute creates any “duty,” which is what Art. 92(3) requires.  It makes certain specified criminal conduct a crime, but it creates no “duty” in this regard.  Cf. statutes that create a duty to have your car registered, insured, or not to drive on a public highway without a valid driver’s license – those statutes create a legal duty.

    Obviously, the MJ and AF CCA bowed to the prosecution’s arguments —  both accepted as gospel the claim that the statute on its face creates the necessary duty.  But here’s the statute:

    Look at Encl. 9, DoDI 1015.10, para. 2.a.1, which states:

    “The minimum drinking age on a DoD installation located in a State (including the District of Columbia) shall be consistent with the age established by the law of that State as the State minimum drinking age.” 

    Nevada, like most states, does not have an absolute ban on all consumption of alcohol by persons under age 21 — which is the gravamen of the government’s argument here.  The Air Force cannot create a “duty” where it simply does not exist under State law — indeed, that then would violate the DoD Instruction.  Yet the Specification clearly implies [hence the constitutional argument of lack of proper ‘notice’] that there is a per se prohibition against all alcoholic consumption by persons under 21.

    The argument here wins at CAAF for the same reason that Fosler’s argument won at CAAF – it’s the correct interpretation and application of the statute at issue.

  15. Cloudesley Shovell says:

    My criticism above was directed at those persons on the government side of this case.  Trial counsel should have spoken up to the CA and his SJA and rid the charge sheet of this pointless charge and spec.  The SJA should have done the same.  Even post-trial, the gov’t could have further proofed the case against appellate attacks by simply disapproving the underage drinking finding and knocking a week off the sentence. 

    Appellate gov’t counsel could simply have not challenged the allegation of error on appeal, or even conceded the issue.  Given the language in Art. 134, it is inconceivable that Art. 92 can be used to enforce state law against all servicemembers under the completely misguided theory that state law somehow imposes a military duty. 

    CAAF needs to give this theory the well-deserved death it deserves, in clear and completely unambiguous language. 

  16. stewie says:

    Isn’t this also a preemption issue? If one were to believe that any violation of state law is an Article 92 violation, then you could NEVER charge any violation of state law under clause 3, art 134, because preemption says if one of the enumerated articles covers it, you can’t use 134.
    One assumes the same analysis for federal law.

  17. Gene Fidell says:

    What a mess, and what great comments! I have a couple of thoughts (having just taught O’Callahan and Solorio yesterday in my military justice course).

    First, Capt S, I’m not sure it’s fair to describe Solorio (full disclosure: I was an arguing amicus for the ACLU) as a 5-4 decision. Justice Stevens concurred in the result, making it 6-3. I would argue that even though he thought the majority wrong to reach the question of whether the service-connection test was constitutionally required, he did not show his hand on the merits of O’Callahan. Had he done so, one might have expected him to comment in some fashion on the 3-justice dissent. But let’s let him speak for himself. Here’s what he wrote:

    “JUSTICE STEVENS, concurring in the judgment.
    “Today’s unnecessary overruling of precedent is most unwise. The opinion of the United States Court of Military Appeals demonstrates that petitioner’s offenses were sufficiently “service-connected” to confer jurisdiction on the military tribunal. Unless this Court disagrees with that determination — and I would be most surprised to be told that it does — it has no business reaching out to reexamine the decisions in O’Callahan v. Parker, 395 U. S. 258 (1969), and Relford v. Commandant, U.S. Disciplinary Barracks, 401 U. S. 355 (1971). While there might be some dispute about the exact standard to be applied in deciding whether to overrule prior decisions, I had thought that we all could agree that such drastic action is only appropriate when essential to the disposition of a case or controversy before the Court.* The fact that any five Members of the Court have the power to reconsider settled precedents at random does not make that practice legitimate.
    “For the reasons stated by the Court of Military Appeals, I agree that its judgment should be affirmed.

    “* Even in its brief proposing the reconsideration of O’Callahan, the United States asked the Court to reconsider that decision only in the event that the Court disagrees with the United States’ submission that petitioner’s acts of sexual assaults on military dependents are service related. Brief for United States 28.”

    Second, I have been toying with the notion that, despite the government’s victory in Solorio, the services have been voting with their feet in the sense that specifications that would not have satisfied O’Callahan and Relford are rare-to-nonexistent in recent decades. Hayes notwithstanding, what do readers think?

  18. Don Rehkopf says:

       I’ve been seeing some abysmally worded Specs as of late – mostly from the AF where Trial Counsel generally lack experienced supervision.  In the pre-Solorio days, everything but the proverbial kitchen sink would be added to a Spec with the hope that it would pass O’Callahan muster.  E.g., one recent 112a spec alleged “divers” use of LSD during an 18 month period “in the continental United States.”  Only problem was that my guy was deployed for a good chunk of that time to Afghanistan.  Obviously, that’s not an O’Callahan problem, but demonstrates the lack of cerebration in drafting specs as is the case here.

       Here in Hayes, using Solorio’s “status” test, here even if the government’s “custom” of the Air Force was to strictly abide by State penal laws, the government had to both allege and prove that the “conduct” charged [underage drinking booze] was criminal under Nevada law, when in fact what was was criminal was underage drinking at a specified venue that sold alcohol, which was not alleged.

  19. Zachary Spilman says:

    I’m not sure it’s fair to describe Solorio (full disclosure: I was an arguing amicus for the ACLU) as a 5-4 decision.

    Because Justice Stevens disagreed with the majority’s decision to overrule O’Callahan and Relford, I feel comfortable saying that they “abandoned that rule” 5-to-4.

    On your second point, I think that at the time Solorio was decided, the service-connected test was already beginning to blur (after all, the CMA found the offenses in Solorio to be service-connected). Today, to the service, everything is service connected (see, for example, Because the CO that knows most, knows best).

    Rather than smarter charging decisions, I think the falling caseload is the result of something more quintessentially bureaucratic and fundamentally disturbing.