Calculating the maximum punishment for a novel specification under Article 134 (one the alleges an offense not listed in the Manual for Courts-Martial) can be tricky business. CAAF is considering one such situation this term in United States v. Finch, No. 13-5007/AF (CAAFlog case page). Finch involves child pornography charges, which were a particularly troublesome offense to prosecute under Article 134 before the President specifically defined such offenses and their maximum punishments in Executive Order 13593, effective in early-2012. For example, the notorious Salyer case (CAAFlog case page) involved poorly-drafted child pornography specifications.
The maximum punishment for such a novel specification is calculated pursuant to Rule for Courts-Martial 1003(c)(1)(B), which requires determining if the offense alleged in the novel specification is “included in or closely related to an offense listed [in the Manual].” R.C.M. 1003(c)(1)(B)(i). If not included or closely related, then the offense is punishable “as authorized by the United States Code, or as authorized by the custom of the service.” R.C.M. 1003(c)(1)(B)(ii). And if neither the U.S. Code nor custom of the service applies, then the offense is punishable as a “general” or “simple” disorder, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months. See, for example, United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011) (link to slip opinion) (discussed in my argument preview for Finch).
But what if a closely related or identical offense is added to the MCM by the President after the offense is committed?
The NMCCA recently considered such a situation in United States v. Dick, No. 201300205 (N-M.Ct.Crim.App. Nov. 21, 2013) (link to unpub. op.). Appellant pleaded guilty to receipt and possession of child pornography. His court-martial occurred in 2013, but he committed his crimes in 2011, before the President listed the child pornography offenses under Article 134. Accordingly, Appellant was charged with novel violations of clauses 1 and 2 of Article 134, with the specifications incorporating the definition of child pornography used in 18 U.S.C. § 2256. He was advised at trial that the maximum sentence he faced included confinement for 25 years, though “the military judge did not articulate how he determined the maximum confinement for these offenses.” Slip op. at 2. The adjudged sentence included confinement for 10 years, of which all but 3 years was suspended pursuant to a pretrial agreement.
The case was submitted to the NMCCA without assignment of error (a so-called “merits” case), but the court’s opinion notes that:
R.C.M. 1003(c)(1)(B)(i) is silent on the question of whether the “closely related” offense must be listed in Part IV of the Manual at the time of the alleged offenses and at the time of trial. If R.C.M. 1003(c)(1)(B)(i) requires both, then the maximum punishment in the present case would be determined using the analogous child pornography offenses under Title 18 U.S.C. § 2252A. But if the Rule only requires that the closely related offense be listed in Part IV of the Manual at the time of trial, then the military judge should have advised the appellant he was facing twenty years confinement for his pleas of guilty.
Slip op. at 3 (emphasis added). So while Appellant makes no complaint, the NMCCA sua sponte considers the possibility that offenses committed in 2011 and tried in 2013 could invoke punishments effective in 2012.
But the court does this rhetorically, determining instead that “even assuming arguendo that the military judge erred in his maximum punishment advice, we conclude that any such error did not materially prejudice a substantial right of the appellant.” Id. The court is convinced Appellant would still have pleaded guilty even if he was advised that the maximum punishment he faced included confinement for 20 years instead of 25. For now, nobody has to go back to the future to determine the maximum sentence for a novel specification under Article 134.