United States v. Humphries, No. 10-5004/AF, 71 M.J. 209 (C.A.A.F. Jun. 15, 2012) (CAAFlog case page) (link to slip op.), has a complicated case history. I discussed it in my recap of the oral argument, but the short version is that Senior Airman Humphries was convicted, contrary to his pleas, of consensual sodomy and adultery, and sentenced to reduction to E-1 and a bad-conduct discharge, but the Air Force CCA remanded the case to the convening authority with instructions that the sentence be no greater than reduction to E-1 and a suspended bad-conduct discharge. The JAG then certified the following issue to CAAF:
Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.
After a petition for cross-appeal by Humphries, CAAF granted the following additional issue:
Whether a contested adultery specification that fails to expressly allege an Article 134 terminal element but that was not challenged at trial states an offense.
Surprisingly, the court grants relief on the second issue, and sets-aside the finding of guilty to the adultery charge. The court then remands the case for reassessment of sentence without reaching the certified issue.
But the opinion, authored by Judge Ryan and drawing separate dissents from both Chief Judge Baker and Judge Stucky, does more than just grant relief to an appellant who didn’t object to a defective Article 134 specification during a contested trial. It also clarifies any lingering questions about the retroactivity of Fosler, addresses the controversy surrounding RCM 907(b)(1)(B), and it somewhat contradicts emerging caselaw from a CCA (published and unpublished).
Judge Ryan’s opinion begins with analysis of the perceived error: the failure to allege a terminal element in an Article 134 specification. “As in [Fosler and Ballan], the specification at issue here was legally sufficient at the time the case was referred (February 13, 2009) and tried (March through May, 2009) and is problematic today only because of intervening changes in the law. Under current law, the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven. And, regardless of context, it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication.” Slip op. at 6-7 (citations and quotations omitted).
Finding error, the majority then addresses the question of the remedy, beginning with, “The existence of error alone does not dictate that relief in the form of a dismissal is available.” Slip op. at 7. Judge Ryan explains that the failure to allege an offense is not a structural error, and then turns to analysis of the requirement of Rule for Courts-Martial 907(b)(1)(B) that “[a] charge or specification shall be dismissed at any stage of the proceedings if . . . [t]he specification fails to state an offense.” She notes that when this rule was created, “in accordance with Supreme Court precedent, where an indictment was found defective for failing to list all elements of an offense, it was necessarily dismissed on jurisdictional grounds (regardless of when the error was raised).” Slip op. at 8. She also notes that the Supreme Court has “tried in recent cases to bring some discipline to the use of this term” (jurisdictional error). Slip op. at 9 (citation omitted). Finally, she notes that the Supreme Court’s 2002 decision in United States v. Cotton, 535 U.S. 625, found that a defective indictment does not deprive a court of jurisdiction. This historical analysis leads CAAF to reject the “shall be dismissed” language of the RCM in favor of a plain-error analysis of case-specific prejudice. A footnote notes how this is different from a defective specification that is challenged at trial, where the remedy for the notice violation is dismissal. Slip op. at 11 N.5.
But the opinion goes further, discussing the permissive nature of the court’s ability to grant relief, and the high bar of the Article 59(a) standard of “material prejudice to a substantial right.” Slip op. at 13. “Nothing in Article 59(a), UCMJ, mandates reversal even where an error falls within its terms.” Id. (citing United States v. Powell, 49 M.J. 460, 465 (C.A.A.F. 1998)). This seems like the perfect prelude to finding no prejudice, like in Ballan. However, Judge Ryan (who also authored the court’s opinion in Ballan) distinguishes the facts of Humphries from Ballan. The finding of no material prejudice in Ballan “is a conclusion, which, as a result of the unique requirements for accepting a guilty plea in the military context, will likely be true in most factually comparable cases (although each case must still be tested for prejudice).” Slip op. at 15. In Humphries, “the protections afforded in the context of a military guilty plea inquiry are absent.” Slip op. at 16.
Still, that isn’t enough. “[I]n the plain error context the defective specification alone is insufficient to constitute substantial prejudice to a material right.” Slip op. at 17. So the majority seeks any evidence that the accused was on notice in this case, thereby relieving the prejudice, but it finds none. The adultery charge was not mentioned in the prosecution’s opening statement, there was no evidence or witnesses that implicated either clause 1 or 2 of Article 134, and while the military judge’s instructions did discuss the terminal element, this “did not alert Appellee to the Government’s theory of guilt.” Slip op. at 18. “In sum, the Government did not plead the terminal element of Article 134, UCMJ, and, after a close reading of the trial record, there was nothing during its case-in-chief that reasonably placed Appellee on notice of the Government’s theory as to which clause(s) of the terminal element of Article 134, UCMJ, he had violated.” Slip op. at 19-20.
Of note, the NMCCA’s published opinion in United States v. Hunt, __ M.J. __, No. 201100398 (N-M. Ct. Crim. App., April 30, 2012) (en banc) (discussed here), that affirmed in a contested case involving a defective Article 134 specification of communicating a threat, does not discuss the facts in this level of detail, while that same court’s unpublished opinion in United States v. Boyer, No. 201100548 (N-M. Ct. Crim. App., May 22, 2012) (per curiam) (discussed here), reaching the same result in a case involving defective Article 134 specifications for adultery and patronizing a prostitute, notes the evidence and argument the government presented on the terminal element, and that appellant’s lack of objection thereto. In this respect, CAAF’s reversal in Humphries is distinguishable from the NMCCA’s affirmations in Hunt and Boyer.
In conclusion, Judge Ryan writes that, “under the totality of the circumstances in this case … the error in the Article 134, UCMJ, specification was not cured by the Government in any respect in the course of trial…” Slip op. at 20-21. This leads to the constitutional prejudice – lack of notice – and relief. “The finding of guilty to [the adultery] specification is set aside, and the charge and specification are dismissed.” Slip op. at 22.
Chief Judge Baker and Judge Stucky write separate dissenting opinions, both disagreeing with the majority on the granted issue, and both disagreeing with the Air Force CCA on the certified issue.
The Chief Judge cites to his dissent in Fosler to explain that the specification is not defective. He then finds that “it is not clear on what basis the lower court in fact remanded Appellee’s case to the convening authority for a new action … the review of a sentence for appropriateness is an authority granted to the Court of Criminal Appeals, not the convening authority … However, if the Court of Criminal Appeals was seeking to accomplish an appropriateness end to which it did not itself have the authority to reach — suspension of a bad-conduct discharge — then it was acting beyond its legal authority.” Baker, C.J., diss. op. at 4-5. The Chief Judge seeks clarification from the CCA of its legal justification for its remand.
Judge Stucky however finds that there is no plain error in this case. His dissent discusses the original adoption of the Supreme Court’s plain error test by the Court of Military Appeals in 1986, and the subsequent modification of the test in United States v. Powell, 49 M.J. 460, 463–65 (C.A.A.F. 1998), based on the differences between federal and military practice. Significantly, his dissent analyzes, and adopts, the fourth prong of the plain error test.
Plain error requires (1) error, (2) that is plain, and (3) that materially prejudices the appellant’s substantial rights. However, the Supreme Court has held that if all three prongs are satisfied, the court has “discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of public proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009). Judge Stucky’s dissent adopts this limitation (and in a footnote states that he would apply it to the CCAs as well).
Applying the plain error test, Judge Stucky finds that the majority’s finding of lack of notice as the prejudice is just a recasting of the error. Stucky, J., diss. op. at 6-7. He states that “to show prejudice, Appellee would have to demonstrate that the error — the lack of notice — impaired his ability to defend against the specification such that it had an unfair prejudicial impact on the factfinder’s deliberations.” Id. at 7. Finally, even if there were error he finds that it “did not seriously affect the fairness, integrity, or public reputation of [military] judicial proceedings.” Id. at 9.
On the certified issue, Judge Stucky is blunt: “In this case, the CCA thought the bad-conduct discharge that the convening authority approved should be suspended. Apparently recognizing that they did not have the power to suspend the bad-conduct discharge, they remanded the case to the convening authority for a new action, basically giving him two options — either approve a sentence that did not include an unsuspended bad-conduct discharge or the CCA would set aside the bad-conduct discharge. The CCA was without authority to take such action.” Stucky, J., diss. op. at 13.
All of this makes Humphries (at least feel like) the most divided case of the term. But there are still five argued cases still undecided…
• AFCCA first opinion
• AFCCA second opinion
• Appellant’s (government) brief
• Appellee’s brief
• Cross-appellant’s brief (Fosler issue)
• Cross-appellee’s (government) brief (Fosler issue)
• Oral argument audio
• Blog post: Argument recap
• CAAF opinion
• Blog post: Opinion analysis