I set the bar pretty high in my preview of the oral argument at CAAF in United States v. Ballan, No. 11-0413/NA:
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 NMCCA 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
CAAF, in its opinion last week, easily cleared the bar. Judge Ryan writes for all but Chief Judge Baker, who concurs in the result but continues to oppose the court’s Fosler jurisprudence with all the tenacity expected of a Marine officer.
The opinion opens badly for the defense: “Consistent with our decision in United States v. Wilkins, 29 M.J. 421 (C.M.A 1990)…” Slip op. at 3. The appellate government shops dug up Wilkins after CAAF decided Fosler, and successfully used it to win affirmations at the CCAs in cases where the accused pleaded guilty to a defective Article 134 specification. The court’s affirmation of Wilkins here is a significant limitation on the reach of Fosler. This is wrong. I’m thinking about United States v. Watkins, 21 M.J. 208 (C.M.A., 1986), not United States v. Wilkins. However, CAAF does affirm Watkins in its opinion:
… the Court ‘view[s] [the] specification with maximum liberality, United States v. Bryant, 30 M.J. 72, 73 (C.M.A. 1990); see also United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986) …
Ballan, slip op. at 12.
CAAF first addresses the propriety of the Article 134 offense (indecent acts with a child) before the court-martial, since the accused was charged under Article 120 (rape of a child) and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), states that the former is not a lesser-included offense of the latter. Again relying on Wilkins, CAAF concludes that “the pretrial agreement was the functional equivalent of a referral order.” Slip op. at 9. This is not as bold as my favored language from United States v. Allgood, 41 M.J. 492, 495 (C.A.A.F., 1995) (“[a wacky referral order does] not have codal or jurisdictional significance”), but it makes the point. Substance wins over form.
CAAF then turns to the question of a defective specification, and what to do about it: “Whether a specification is defective and the remedy for such error are questions of law, which we review de novo.” Slip op. at 10. If the analysis of your error expands to include a de novo review of possible remedies, prepare to be disappointed.
Addressing the specification, the opinion takes a turn that Review Officers and Staff Judge Advocates everywhere can appreciate: “whether specifications for charged violations of Article 134, UCMJ, may be upheld in the guilty plea context where the terminal element is not alleged cannot be answered by determining that the act that an accused did or failed to do, is inherently, impliedly, or as a matter of common sense, prejudicial to good order and discipline or service discrediting.” Slip op. at 12 (internal citation removed) (emphasis added). Rather, the court states simply that “the terminal element of Article 134 … must be separately charged and proven.” Slip op at 13. This analysis must be so appealing to the defense, who I imagine reading the pages and thinking, “they’ve disclaimed common sense, they say the terminal element must be proven, we’re going to win!” And, indeed, the court concludes that “it is error to fail to allege the terminal element.” Slip op. at 13.
But “error alone does not, however, warrant dismissal,” and “a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error.” Slip op. at 14. Plain error requires (1) error, (2) that is plan or obvious, (3) and materially prejudices a substantial right, (and maybe (4) seriously affects the fairness, integrity, or reputation of the proceedings). In this case, which was tried before Fosler was decided, the court finds that the protections provided by the plea inquiry serve the twin purposes intended by an accurate specification: informing the accused of the offense with which he is charged and protecting him from double jeopardy. This accused “knew under what clause he was pleading guilty and clearly understood the nature of the prohibited conduct as being in violation of clause 2, Article 134.” Slip op. at 18 (internal quotations omitted). Accordingly, while there was error (plain or not), there is no material prejudice.
In his concurring opinion, Chief Judge Baker is blunt:
Either the issue is one of notice or it is one purely of form. However, this Court’s case law now takes the position that in a guilty plea context, the Fosler issue is one of actual notice, in which case there is no prejudice when an Article 134, UCMJ, specification omits the terminal elements, so long as the military judge explains the terminal elements. Whereas, in a contested case, the issue is one of form rather than actual notice; the same specification presents reversible error, even if the parties proceed with actual notice that the offense is based on either clause (1) or (2), of Article 134, UCMJ, or both.
Concurring op. at 3-4. Of course, Chief Judge Baker’s dissent in Fosler asked “can an accused plead guilty to a specification that does not state an offense?” Fosler, 70 M.J. 225, 246 (C.A.A.F., 2011) (Baker, J., dissenting). For now the answer is yes.
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis