On Friday, CAAF published its opinion in United States v. Nealy, No. 11-0615/AR, 71 M.J. 73 (C.A.A.F. Mar. 30, 2012) (CAAFlog case page) (link to slip op.). The case addresses whether an accused can plead to an offense that is not a lesser-included offense of a charged offense, where there is no pretrial agreement and the trial military judge does not explain the law of lesser-included offenses (and the corresponding procedural rights that accused could demand). The issues, as specified by the court (the appellant submitted a petition for review with no assignment of error), are:
I. Appellant was charged with communicating a threat under Article 134, but was convicted pursuant to his plea of using provoking speech in violation of Article 117. In light of United States v. Jones, 68 M. J. 465 (C.A.A.F. 2010) can the conviction be sustained?
II. Whether an Article 134 clause 1 or 2 specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s opinion in United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011).
The court decided both issues adversely to the appellant, ruling:
First, we decline to divest the convening authority’s properly convened court-martial of jurisdiction over referred charges or listed LIOs of those charges where the entire record suggests that everyone involved believed that the Article 117, UCMJ, offense was an LIO of the Article 134, UCMJ, offense, and that, therefore, the convening authority intended it to be referred to court-martial. Second, while it was error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, under the facts of this case, there was no prejudice to Appellant’s substantial rights.
Judge Ryan wrote for the majority. The opinion begins with an analysis of the appellant’s claim that the court-martial lacked jurisdiction over the Article 117 offense because the convening authority did not refer that offense to trial. “Generally, there are three prerequisites that must be met for courts-martial jurisdiction to vest: (1) jurisdiction over the offense, (2) personal jurisdiction over the accused, and (3) a properly convened and composed court-martial.” Slip op. at 6 (citing United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)). But this appellant didn’t argue lack of personal or subject matter jurisdiction, or that the court was improperly convened. Rather, he argued that the convening authority didn’t refer the 117 charge because it isn’t (post Jones) a LIO of the referred 134 charge. The court rejected this argument, concluding that “it is the convening authority’s intent that controls for purposes of R.C.M. 201(b)(3),” that the record is clear that all parties believed the 117 offense to be a LIO of the 134 offense, and that “the better view is that, under the facts of this case, the convening authority intended to, and did, refer any listed LIO when he referred the Article 134, UCMJ, offense.” Slip op. at 10-11.
On the second issue, the opinion first notes that, as in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), the specification was sufficient at the time of trial, and is “problematic today only because of intervening changes in the law.” Slip op. at 11. Then, applying the same prejudice analysis as in Ballan, the court finds:
“[W]hile it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone is insufficient to show prejudice to a substantial right.” Ballan, 71 M.J. at 36 (citing Puckett v. United States, 556 U.S. 129, 142 (2009) (finding that the mere showing of error cannot be “recast” as the effect on substantial rights)).
Slip op. at 13. The government has repeatedly argued that there must be a showing of prejudice apart from the error itself in a plain-error analysis. The court seems to have firmly embraced this position.
In a concurring opinion, Chief Judge Baker notes his dissent in Ballan and Jones to justify his concurrence in the result in this case, but he states that if the 117 offense is not a LIO of the 134 offense, “I do not see how one can reach the conclusion that the court-martial had jurisdiction under R.C.M. 201.” Diss. op. at 3. The Chief Judge notes a number of problems with the majority’s approach, including: (1) the case was referred six weeks after Jones was decided, (2) the trial occurred four months after Jones was decided, (3) the case was on direct appeal when Fosler was decided, and (4) the majority cites to the President’s enumeration of LIOs in the MCM, but rejected this approach Jones.
Edit: It’s hard not to read the Chief Judge’s concurring opinion as an “I told you so,” and the court seems to be straying into whack-a-mole territory with its colloquial emphasis on what “everyone involved believed.” However, there’s hardly injustice in this result, and a different outcome in a workable form is hard to imagine. Rather, the cleanest route might have been to follow the logic of Ballan, and analyze this case not on jurisdictional grounds per se (since the appellant conceded subject matter and personal jurisdiction, and a properly convened court), but on plain-error grounds, concluding that the plea was defective but there is no prejudice justifying relief. After all, it’s not like the appellant has a right to get away with it…
• 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