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?
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.