United States v. Watson, No, 11-0523/MC, 71 M.J. 54 (C.A.A.F. Mar. 20, 2012) (CAAFlog case page) (link to slip op.), is a case about fraudulent enlistment, involving a Marine who pleaded guilty to multiple offenses, including fraudulent enlistment for concealing his pre-service in-patient treatment in a mental health facility. Particularly, the case is about the difference between two fraudulent enlistment rules: (1) the absolute-bar-to-enlistment rule, and (2) the initially-disqualified, need-a-waiver rule. The opinion explains the development of the different rules in the service courts:

As noted by the parties, the service appellate courts have reached different interpretations on this issue. In two cases from the 1950s, the Air Force and the Navy Boards of Review interpreted the offense of fraudulent enlistment to apply only to matters that would constitute an absolute bar to enlistment. In more recent years, however, both the Air Force and the Navy-Marine Corps Courts of Criminal Appeals have ruled that the statute applies to any information that would prevent enlistment, whether it concerns an absolute bar or a bar absent a waiver.

Slip op. at 6 (citations omitted). The appellant’s counsel, during oral argument in this case, argued that the appellant’s plea to fraudulent enlistment was improvident under either rule, but urged CAAF to adopt the absolute-bar-to-enlistment rule. Judge Erdmann, writing for the majority, rejects this position:

The plain language of Article 83 states that an accused must make a “knowingly false representation or deliberate concealment as to his qualifications.” Based on this language we agree with the Air Force Court of Criminal Appeals’ analysis when they addressed this issue in United States v. Nazario, 56 M.J. at 579:

We reject the appellant’s contention that the false representation must have concerned a matter that would absolutely bar him from the service. To accept the appellant’s view would be contrary to the plain language of the statute. An accused violates Article 83 by providing false information about a matter that would preclude him from entry without the service waiving the disqualification.

Watson, Slip op. at 8. The opinion also rejects the appellant’s other argument – that the plea was improvident because of an inconsistency – noting that to set-aside a guilty plea an appellate court must find “a substantial conflict between the plea and the accused’s statements or other evidence,” and not just the “mere possibility” of a conflict. Id., Slip op. at 10. This is reminiscent of the court’s opinion this term in United States v. Hayes, No. 11-5003/NA, discussing the need for further questioning when an accused, during a plea inquiry, raises a “possible defense,” vice “the mere possibility of a defense.”

Finally, the opinion addresses two Article 134 specifications lacking terminal elements, to which the accused pleaded guilty. First, citing United States v. Ballan, No. 11-0413/NA, the opinion emphasizes that while failure to state or necessarily imply a terminal element is error, “whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused,” and “that where the military judge described clauses 1 and 2 of Article 134 for each specification during the plea colloquy and where the record ‘conspicuously reflect[s] that the accused clearly understood the nature of the prohibited conduct as being in violation of clause 1 [or] clause 2, Article 134’ there was no prejudice to a substantial right.” Watson, Slip op. at 11 (citations omitted) (brackets in original). Then, noting the existence of a stipulation of fact in this case that included admission to the terminal element, and the plea colloquy that discussed the same, the court finds no prejudice. However, the court’s opinion in Watson does not include some (perhaps) key language found in the court’s opinion in Ballan: “in the context of a specification that was legally sufficient at the time of trial…” Ballan, Slip. op at 15. Despite this omission, the specifications in Watson were also legally sufficient at the time of trial (the sentence was adjudged on January 29, 2010).

The Chief Judge drafted a one-paragraph concurring opinion, in which he “adher[s] to [his] position in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting); United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012) (Baker, C.J., concurring in the result).”

Case links:
N-MCCA Opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: Opinion analysis

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