Like most military appellate counsel, I’m working on several Ballan trailer briefs, and I was working on one particular Ballan trailer brief this morning when the thoughts leading to this post occurred to me.  As a result of working with the opinion in that context (a context which, admittedly, is an exercise in attempting to craft an argument for reversal of my client’s conviction — a context which I’m fully aware is likely to skew my perceptions and analysis), I’m struck by a question:  why doesn’t R.C.M. 807 compel the opposite outcome?

Ballan seems to hold that the specification at issue failed to state an offense.  R.C.M. 907(b) sets out two “[n]onwaivable grounds” for dismissal, one of which is failure to state an offense.  The rule provides:  “A charge or specification shall be dismissed at any stage of the proceedings if . . . . the specification fails to state an offense.”  To my simple way of thinking, that indicates that if at any stage of the proceedings, including on appeal, it is determined that a specification failed to state an offense, then it must be dismissed.

The Ballan majority addressed R.C.M. 907:  “While the rules state that a charge or specification that fails to state an offense should be dismissed, R.C.M. 907(b)(1), 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.”  Ballan, slip op. at 14.  To me, it’s significant that R.C.M. 907 says that such a spec “shall be dismissed,” not “should be dismissed.”  In support of the proposition that a defective spec, if not challenged at trial, is tested for plain error, the Ballan majority cites a Supreme Court case and a Tenth Circuit case.  United States v. Cotton, 535 U.S. 625, 631-32 (2002); United States v. Sinks, 473 F.3d 1315, 1320-21 (10th Cir. 2007). But neither of those cases was governed by R.C.M. 907(b)(1).  Rather, they involved federal criminal proceedings governed by Fed. R. Crim. P. 12 and 34, the wording of which is sufficiently different from that of R.C.M. 907(b)(1) that it isn’t apparent to me why those cases should govern the resolution of this issue in a military context.  For example, when Fed. R. Crim. P. 34 was amended in 1966, the Rules Advisory Committee noted:  “The words ‘on motion of a defendant’ are added to make clear here, as in Rule 33, that the court may act only pursuant to a timely motion by the defendant.”  Contrast that concern for a timely motion with R.C.M. 907, in which the President declares that a challenge based on failure to state an offense is “[n]onwaivable” and shall result in dismissal “at any stage of the proceedings.”

Again, I’m fully aware that I’m looking at this issue through not merely defense goggles, but extra-warping defense goggles in the context of preparing a brief.  I can also see potential rationales for a court holding that what appears to me to be R.C.M. 907(b)(1)’s plain language won’t be enforced, including a potential conflict with Article 59(a).  Resolving such an issue would involve complex and fascinating considerations including the extent to which Chevron deference is appropriate when considering whether to displace the President’s interpretation of the UCMJ.  But for the moment, I’m left wondering why R.C.M. 907 didn’t compel a different outcome.

[Further disclosure:  before Ballan came out, I had argued in at least one brief that a plain error analysis isn’t applicable in this context because of R.C.M. 907’s “[n]onwaivable” and “at any stage of the proceedings” language — an argument that is crushed by Ballan.  Further further disclosure:  I have several Ballan-trailer cases pending before both CAAF and AFCCA.]

14 Responses to “Thinking about Ballan”

  1. Zachary Spilman says:

    It seems counter-intuitive to ask, but why is it that “at any stage of the proceedings” necessarily includes the appellate stage? If the President’s rulemaking in the MCM doesn’t bind CAAF in determining whether the terminal element must be expressly alleged, why does it bind CAAF in determining whether it can review for plain error?

    Congress delegated to the President certain rulemaking authority under Article 36, UCMJ, 10 U.S.C. § 836 (2006), but not everything in the MCM represents an exercise of that authority, and the President does not have the authority to decide questions of substantive criminal law.

    United States v. Fosler, 70 M.J. 225, 231 (C.A.A.F., 2011)

  2. Dwight Sullivan says:

    The Rules for Courts-Martial govern pretrial, trial, and post-trial matters, including at the appellate stage.  This is consistent with the President’s statutory authorization to prescribe “[p]retrial, trial, and post-trial procedures.”  Art. 36(a).  Rules governing how to preserve error are procedural rules, not matters of substantive law.  Accordingly, such a rule is within the President’s authority to prescribe so long as it is not “contrary to or inconsistent with” the UCMJ.  Art. 36(a).

  3. Dwight Sullivan says:

    Also, look at R.C.M. 902(c):  “For the purpose of this rule the following words or phrases shall have the meaning indicated:  (1) ‘Proceeding’ includes pretrial, trial, post-trial, appellate review, or other stages of litigation.”  That supports the common sense notion that appellate review is a “stage” of the proceedings falling within the categorical phrase “any stage of the proceedings.”

  4. stewie says:

    shall does seem to be a pretty important word. I forget, but did they test for prejudice in Fosler?

  5. Zachary Spilman says:

    Well, the R.C.M. 907 argument is a good one. The easiest answer is to just say that Fosler was decided wrongly, but that won’t work. So the government has to propose a solution that is both logical and consistent with Fosler. This requires some creative analysis of the Code.

    By operation of Article 36, the President has the authority to prescribe rules for courts-martial, but those rules must be consistent (“so far as he considers practicable”) with the principles of law generally recognized in the trial of criminal cases in the United States district courts. But, if the Supreme Court were to state a legal principle that is favorable to an accused but inconsistent with a rule prescribed by the President (say, recognizing a right to actually confront the declarant of any testimonial statement), CAAF wouldn’t ignore the rule stated by the Supreme Court in slavish adherence to the rule dictated by the President. The same should be true for a rule that is (arguably) favorable to the government: that plain error review applies to a defective specification first challenged on appeal.

    In R.C.M. 907(b) the President mandates dismissal of a defective specification “at any stage of the proceedings.” The rule itself does not define “proceeding,” and the definition provided in R.C.M. 902 (regarding disqualification of a military judge) is not persuasive because military judges are found at various stages of court-martial litigation. However, the President is a commander, not a military judge, and his direction in R.C.M. 907 could be read as a limitation on the power of subordinate commanders. In other words, it is the convening authority who must dismiss the specification for lack of jurisdiction or failure to state an offense, whether raised pre-trial, at trial, or before the convening authority acts on the result of the trial, even though the trial military judge ordinarily carries out this action.

    But the President lacks authority over the actions of the Courts of Criminal Appeals and the Court of Appeals, which are creatures of Congress. In Article 66, Congress gave the authority to prescribe rules for the Courts of Criminal Appeals to the Judge Advocates General, not to the President. Similarly, in Article 144, Congress gave the Court of Appeals the authority to prescribe its own rules.

    CAAF rejected the President’s rulemaking in Fosler, creating substantive law and a new basis for appellate relief in the process. Writing for the court, Judge Stucky noted that “the jurisprudence of the Supreme Court and our own Court has changed.” Fosler, 70 M.J. at 232. But requiring prejudice when a specification is first challenged on appeal is not a new concept; Watkins was decided in 1986 and favorably cited in Fosler. Insofar as Watkins (and now Ballan) is inconsistent with the rules prescribed by the President, it is, as in Fosler, a problem with the President’s rules.

    CAAF is merely doing for courts-martial with the Supreme Court does for the courts of the United States, “say[ing] what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803).

  6. stewie says:

    Why? Why should it do the same for a rule in the civilian sector that is favorable to the government?
    Particularly if the military version is intentionally (or plainly) more favorable to the accused? Why have all sorts of rules that give protections to an accused in the military that aren’t present in the civilian world. The President’s rule-making in Fosler was against the Accused. It allowed the government to ignore an element.
    By the way, there is no statutory rule that speaks to dismissal for failing to state an offense I am aware of, thus there is nothing for the President to run afoul of in applying that plainly procedural rule as he sees fit. He is completely allowed to do it under Article 36, and it is a right ceded to him by Congress.
    There is nothing in 66 or 67 that precludes that. Heck, the CAAF CITES the rule. The CAAF does not say, well this really doesn’t apply to us. They instead looked to the Supreme Court for an out.
    The answer is not at all about the problem with the President’s rules. Again, if this problem were with one of the enumerated offenses, we’d all be fine. The problem is that this error in 134 was let go, and said was fine for three generations. And now that, rightfully, the Court has fixed the error, no one wants to envision the practical effect of having every single guilty plea under 134 that didn’t charge a terminal element, overturned.
    So they…fixed it…

  7. Dwight Sullivan says:

    First, the military courts fail to apply rights recognized by the Supreme Court every day where they are based on sources of law inapplicable to military proceedings.  The question is whether a source of law applies to military courts or not.  Federal Rules of Criminal Procedure don’t.  Rules for Courts-Martial do.  So any legal principle that the Supreme Court has recognized based on Federal Rules of Criminal Procedure don’t apply to courts-martial.  Legal principles based on portions of the Bill of Rights that apply to the military are enforceable at courts-martial.  And portions of the Bill of Rights inapplicable to the military — such as the grand jury requirement — are unenforceable at courts-martial.

    Unless there is a higher source of law that compels a different result, it is CAAF’s job to “slavish[ly] adher[e]” to the President’s prescribed rules, which are promulgated pursuant to authority delegated by Congress (Art. 36) in the exercise of its constitutional role and responsibility to make rules for the regulation of the land and naval forces.  U.S. Const. art. I, § 8, cl. 14.

    Second, courts can’t second guess the President’s exercise of his Article 36(a) practicability determination.  The Supreme Court has observed, “We assume that complete deference is owed that determination.”  Hamdan v. Rumsfeld, 548 U.S. 557, 623 (2006).

    Third, the Manual for Courts-Martial isn’t a handbook for commanders; it’s a source of binding regulations that govern military judges, appellate military judges, and (in some instances) every member of the United States military.  Also, can you cite a source of law for the proposition that “it is the convening authority who must dismiss the specification for lack of jurisdiction”?

    Next, the President often provides the binding law that military appellate courts are to apply.  Congress gave the Judge Advocates General the authority to prescribe “uniform rules of procedure for Courts of Criminal Appeals.”  That’s a different matter than providing the rules of procedure that the military appellate courts apply.  Also, if it were true that “the President lacks authority over the actions of the Courts of Criminal Appeals,” then portions of both R.C.M. 908 and Chapter XII of the Rules for Courts-Martial would be ultra vires.  I would hope that in a unitary executive system, such as ours, government counsel would not be heard to argue that the President of the United States has overstepped his power.

    Also, where did CAAF reject the President’s rulemaking in Fosler?  Your quotation from the majority opinion is in the context of how LIOs are determined.  I don’t see any presidentially prescribed rule that was displaced in the process. 

    As to Marbury v. Madison, courts get to say what the law is by interpreting governing texts.  Marbury was a perfectly plausible interpretation of the Constitution.  Courts don’t get to prescribe the law.  The Constitution gives Congress the power to create military justice laws.  Congress has done so.  In doing so, Congress authorized the President to prescribe rules of procedure.  He has done so.  There is no source of authority for CAAF to prescribe law.  Unless CAAF determines that a presidentially prescribed rule isn’t within his authority or conflicts with a higher source of law, it is CAAF’s duty to carry out the presidentially prescribed rule.  And I am confident that every CAAF judge would agree with that proposition.   

  8. stewie says:

    Well, they did reject the President’s rule-making in a basic sense in Fosler, by rejecting the explicit language that suggested the terminal element didn’t have to be listed didn’t they?
    The rest of your post I completely agree with.

  9. Zachary Spilman says:

    I’m pretty confident that the unitary executive’s position, and I know my personal position (which is more likely to result in official bewilderment than sanction), is that Fosler was decided wrongly, and that Ballan and the other trailers are unnecessary.

    I wrote The right to get away with it because I don’t think its in the interests of justice to set-aside a conviction, entered in accordance with a plea pursuant to a pretrial agreement, just because the charge sheet didn’t include the terminal element of a 134 specification. I recognize that this is, on its face, inconsistent with CAAF’s reasoning in Fosler.

    So, as I continue to wield my knife in this gunfight…

    The notes to Federal Rule of Criminal Procedure 52 state that the plain error rule is a “restatement of existing law.”

    I can’t argue with the deference language of Hamdan, but lumping together your second and third points I’d say that CAAF could find a controlling federal principle of law (regarding plain error) that the President hasn’t clearly found impracticable (after all, the requirement to plead the terminal element in 134 could have been deemed impracticable), and then run with it. I have no precedent to support my “convening authority must dismiss” idea; I was trying to come up with a way CAAF could explain away your point about R.C.M. 907, and figured that it wasn’t any more radical an idea than Fosler itself.

    Regarding the President’s provision of binding law to military appellate courts, I actually believe that the practical reality is the other way around, and that the President often prescribes rules after they are first stated by the appellate courts. For example, the sentence-limitation provisions of R.C.M. 810, insofar as they surpass the protections of Article 63, are traceable to caselaw (i.e., United States v. Padilla, 1 USCMA 603, 612 (C.M.A., 1952)).

    CAAF didn’t reject Presidential rulemaking in Fosler, but rather distinguished the President’s power to make procedural rules from the court’s power to decide questions of substantive criminal law. If the plain error rule is inherently substantive, CAAF could employ it as a precursor to procedural relief.

  10. Zachary Spilman says:

    Of course Sir, SCOTUS could just adopt your reasoning about Ballan and reverse…

  11. stewie says:

    “I don’t think its in the interests of justice to set-aside a conviction, entered in accordance with a plea pursuant to a pretrial agreement, just because the charge sheet didn’t include the terminal element of a 134 specification.”
    Would you feel similarly if the missing element were as part of an enumerated offense/charge?

  12. Zachary Spilman says:

    In Ballan the Chief Judge criticized the majority of adopting a rule of actual notice in a guilty plea case, but of form in a contested case. Perhaps this isn’t entirely fair.

    In Fosler the majority wrote: “The requirement to allege every element expressly or by necessary implication ensures that a defendant understands what he must defend against.” 70 M.J. at 229.

    In Ballan the majority wrote: “The real question is whether we will find prejudice and disturb the providence of a plea where the providence inquiry clearly delineates each element of the offense and shows that the appellant understood to what offense and under what legal theory he was pleading guilty.” Slip op. at 16 (citation omitted).

    Aren’t both really questions of notice? In Fosler the accused objected at trial, claiming that the notice provided by the specification was insufficient. This entitled him to appellate relief unless the government proves that the (due process) error was harmless beyond a reasonable doubt. Toohey, 63 M.J. 353, 363 (C.A.A.F., 2006). In Ballan the accused didn’t just not object, but affirmatively and unconditionally pleaded, showing his notice. This limited his right to appellate relief “absent a clear showing of substantial prejudice.” Watkins, 21 M.J. 208, 209-210 (C.A.A.F., 1986). These tests depart from the rule announced by the President in R.C.M. 907 because CAAF, acknowledging that “technically” the error can be raised at any time, instead “choose[s] to follow the rule of most federal courts.” Watkins, 21 M.J. at 209.

    Stewie, while I admit that I’m looking at this through 134-colored glasses, I note that the offense at issue in Watkins was a violation of Article 86.

    It has been black-letter law in the military since United States v. Fout, 3 U.S.C.M.A. 565, 13 C.M.R. 121 (1953), that a specification under Article 86 is fatally defective if it does not allege that the absence was “without authority.” For this reason, it is surprising that the sufficiency of the specification has been questioned, for the first time, at this level of appeal…. Although failure of a specification to state an offense is a fundamental defect which can be raised at any time, we choose to follow the rule of most federal courts of liberally construing specifications in favor of validity when they are challenged for the first time on appeal.

    It is clear that the accused was not misled, as he pleaded guilty to both specifications, had the elements of absence without leave correctly explained to him during the providence inquiry, and admitted that he understood the offenses to contain the element “without proper authority.” Also, there is no danger to the accused in terms of double jeopardy, as the record will protect him from further prosecution for the same offense.

  13. Michael A says:

    It’s hard to get around the plain language of the rule, but is there an argument that 907(b) should be interpreted in light of governing federal case law?  Looks like the analysis to 907 gives a “see also” to Fed. R. Crim. P. 12(b)(2) and 34.  

    Haven’t done the research, but I’m guessing that this provision of 907 was implemented when the federal rule was that indictment-defects were structural (i.e. pre-Cotton)?

  14. Zachary Spilman says:

    The 1969 Manual has some interesting discussion (I’ve highlighted a few key passages):


    a. General. A motion to dismiss properly relates to any defense or objection raised in bar of trial. Among the defenses and objections which may be raised by this motion before entering a plea are lack of jurisdiction (68b), failure of the charges to allege an offense (68b), running of the statute of limitations (68c), former jeopardy (68d), pardon (68e) , constructive condonation of desertion (68 f), former punishment (68g), immunity (68h), and unreasonable denial of speedy trial (68i). See 57 for finality of rulings.

    b. Lack of jurisdiction; failure to allege an offense.

        (1) General. If the court lacks jurisdiction or if the charges fail to allege any offense under the code, the proceedings are a nullity. These objections cannot be waived and may be asserted at any time.

        (2) Lack of jurisdiction. A motion to dismiss on the ground of lack of jurisdiction is ordinarily based on an assertion that the court is not properly constituted because it was not convened by an official empowered to convene it or on an assertion that the accused is not a person who properly may be tried by court-martial. See 8 as to requisites for court-martial jurisdiction and 9 as to jurisdiction of courts-martial as to persons. With respect to jurisdiction of an offense committed before a fraudulent discharge, a final conviction of having fraudulently obtained the discharge in violation of Article 83 (2) may be shown by the prosecution as a final adjudication of the fraudulent discharge, and the accused may not dispute the jurisdiction of the court as to the earlier offense on the ground that his separation from the service was not fraudulent. See Article 3 (b).

        (3) Failure to allege an offense. By a motion to dismiss, the accused may object to the failure of a specification to allege any offense triable by court-martial. With the exceptions stated in 14a, courts-martial do not have jurisdiction to try any offenses not cognizable under the code. Unless the specification of a charge alleges an offense of which a court-martial may take cognizance, a motion to dismiss should be granted as to the specification. If the motion is granted, the military judge, or the president of a special court-martial without a military judge, will direct that the specification be striken and disregarded.