Three words caught my attention in the Army CCA’s summary disposition in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013) (unpub. op.) (slip op. here): ultimate offense doctrine.
Way back in United States v. Bratcher, 18 USCMA 125, 128 (1969), the Court of Military Appeals observed that:
an order to obey the law can have no validity beyond the limit of the ultimate offense committed
The Appellant in Phillips was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings; an order that he violated. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.
But the Army CCA rejects the plea, applying the “ultimate offense doctrine.”
Neither the stipulation of fact nor the providence inquiry developed or established sufficient facts to support a plea of guilty to a violation of Article 90, UCMJ, but rather merely establish the offense of breaking restriction in violation of Article 134, UCMJ.
Slip op. at 2.
Since Article 134 offenses are no longer considered lesser-included offenses of violations of the other punitive articles (see United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here)), the CCA can’t affirm a finding of guilty of breaking restriction and simply dismisses the charge.
This is the fifth case in the past 15 months where the Army CCA applied the ultimate offense doctrine to set aside a plea of guilty to Article 90, finding that the plea inquiry established only the offense of breaking restriction. See United States v. Gillum, No. 20111156 (A.Ct.Crim.App. Jul. 27, 2012) (unpub. op.) (slip op. here); United States v. Jorgensen, No. 20111094 (A.Ct.Crim.App. Jul 27, 2012) (unpub. op.) (slip op. here); United States v. Sylvain, No. 20111042 (A.Ct.Crim.App. Oct 12, 2012) (unpub. op.) (slip op. here); United States v. Dabrowski, No. 20120012 (A.Ct.Crim.App. Oct. 31, 2012) (unpub. op.) (slip op. here).
The court also recently applied the doctrine in two other cases to set aside similar pleas to violations of Articles 91 and 92. See United States v. Gobert, No. 20110941 (A.Ct.Crim.App. May 15, 2013) (unpub. op.) (slip op. here) (Article 91); United States v. Porter, No. 20110489 ((A.Ct.Crim.App. Mar. 11, 2013) (unpub. op.) (slip op. here) (Article 92).
Prior to these seven cases, the military appellate courts haven’t considered the “ultimate offense doctrine” in almost a decade. The most-recent example I can find is United States v. Farrow, No. 20040055 (A.Ct.Crim.App. Oct. 31, 2006) (unpub. op.) (slip op. here) (rejecting application of the doctrine).
These seven cases all have one thing in common: Judge Krauss. He was part of the panel that decided each of these cases, and he wrote three of the opinions (Gillum (the first one), Jorgensen, and Phillips). But he’s not the only judge breathing new life into the doctrine. The other judges concurring in the application of the doctrine in these decisions are:
Judge Burton, who took part in six of the cases (all but the last one) and wrote one of the opinions (Gobert);
Senior Judge Yob, who took part in five of the cases (all but the first two) and wrote three of the opinions (Sylvain, Dabrowski, and Porter);
Senior Judge Johnson, who took part in the first two cases but wrote none of the opinions.
Judge Lind took part in the last case (Phillips), but dissented. She would apply the “full authority of his office” exception to find the plea provident (this exception was described in this post as: “You know those moments when you’re issuing an order and you grab the tip of your collar, pull it out, and ostentatiously display your rank insignia to the subordinate to whom you’re giving the order? The ultimate offense doctrine doesn’t apply there, because you are invoking your status…”).