CAAF decided the Air Force case of United States v. Payne, No. 13-0245/AF, 73 M.J. 19 (CAAFlog case page) (link to slip op.), on January 6, 2014, finding that the military judge improperly instructed the members on the offense of attempted persuasion of a minor to create child pornography but that the error was harmless beyond a reasonable doubt, affirming the conviction and the decision of the Air Force CCA.
Judge Erdmann writes for a unanimous court.
Appellant was convicted contrary to his pleas, by a general court-martial composed of officer members, of attempting to communicate indecent language, attempting to transfer obscene material to a minor, and attempting to persuade, induce, entice, or coerce a minor to create child pornography, all in violation of Article 80, UCMJ, and of two specifications of failure to obey a lawful general regulation by misusing his Government-issued computer in connection with the sex offenses, in violation of Article 92, UCMJ. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, and a dishonorable discharge.
The facts of the case are that Appellant:
engaged in a series of sexually explicit Internet chats and phone calls with an undercover civilian sheriff’s deputy who Payne believed to be a fourteen-year-old girl named “Marley.” The communications took place over a period of about a month and a half. As a part of those chats, Payne repeatedly asked “Marley” to send him pictures of herself. Some of these requests were for “nude” pictures, while others were more general.
Slip op. at 3. These actions led to the various attempt specifications. “At trial, Payne’s defense to the[se] specifications focused almost exclusively on the defense of entrapment.” Slip op. at 4. Appellant did not contest that he committed the underlying acts. However, his counsel did object to the findings instructions given to the members by the military judge, asserting that:
For all four specifications under Charge I, we object to your instructions because we do not believe that the government in its pleadings identified the offenses to which you are listing elements. . . .
As I said in the 802 conference, our challenge is this, we have a duty to candor towards a tribunal and to identify any errors and give you a forthright answer, but we also have a competing duty to Staff Sergeant Payne and not to assist the government or even the bench in perfecting elements in charges against him if we think that there’s, perhaps, a right way to do this. And therefore, we simply say that we don’t believe that the court has been able, due to the nature of the pleadings, to properly identify if these are offenses and if so, what those elements would be.
This obstructionism didn’t get a ruling from the judge, but it did lead to the members receiving instructions in which “the government concedes that ‘the military judge did not read the statutory elements of Article 80 [Attempts].'” Slip op. at 6. Appellant was then convicted of three of the four attempt specifications. For reasons unclear in the opinion, the instructions for only one of these three specifications was raised at the CCA and is at issue in the case before CAAF.
Judge Erdmann’s opinion of the court begins with a focus on the defense counsel’s obstructionism (my word) and whether, despite it, the “objection adequately preserved the error [Appellant] now raises on appeal.”Slip op. at 7.
“No,” rules the unanimous CAAF:
Payne’s defense counsel objected to all of the military judge’s instructions to Charge I on the grounds that “the government in its pleadings [did not] identif[y] the offenses to which [the military judge was] listing elements.” However, defense counsel did not identify which specification or specifications he was referring to or which elements he felt the military judge should have instructed on because he did not want “to assist the government or even the bench in perfecting elements in charges against [Payne].” (Emphasis added.) In taking this position, it appears that defense counsel was trying to preserve any instructional error for appeal while simultaneously refusing to assist the military judge in correcting any alleged instructional error at the trial level. Under these circumstances we believe that the issue is most appropriately treated as waived in absence of plain error.
Slip op. at 9-10 (emphasis in original). Judge Erdmann notes the text of R.C.M. 902(f) that states that “failure to object to an instruction . . . constitutes waiver of the objection in the absence of plain error.” Slip op. at 8 N.3. So, by refusing to assist in getting the instructions right at trial, the defense counsel had the same effect as if he had said nothing at all (with the added fact that by being an obstructionist, he made the profession look bad). This strikes me as the right result. Ensuring the panel is properly instructed is a professional and ethical obligation, particularly if you’re objecting to the instructions about to be given. Making vague objections for the purpose of being difficult is amateurish. At best.
Notably, Judge Erdmann’s opinion doesn’t identify the defense counsel, or even the fact that it was a civilian defense counsel retained by Appellant (at who knows what expense), though the AFCCA’s opinion makes clear that it was a civilian defense counsel.
Judge Erdmann then turns to whether the instructions were error, explaining:
There are four elements of attempt: (1) that the accused did a certain overt act; (2) that the act was done with the specific intent to commit a certain offense under the code; (3) that the act amounted to more than mere preparation; and (4) that the act apparently tended to effect the commission of the intended offense.
Slip op. at 10-11. CAAF finds that the specification alleged an attempt and that the military judge’s instructions “adequately covered the first two elements of attempt.” Slip op. at 11. But “the military judge’s instructions did not include the third element of attempt — an error which we find to be plain and obvious.” Slip op. at 13. Nor did the military judge instruct on the fourth element, something that “also constituted plain and obvious error.” Slip op. at 14.
Error, that is plain and obvious, satisfies the first two prongs of the plain error test. All that remains is Appellant’s burden to show prejudice. Judge Erdmann begins by discussing United States v. Mance, 26 M.J. 244 (C.M.A. 1988), where the court determined that the complete omission of an instruction on an element “may not be tested for harmlessness” (meaning it is a structural error). Mance, 26 M.J. at 255. But eleven year later the Supreme Court decided Neder v. United States, 527 U.S. 1, 8 (1999), where “it held that the failure to instruct on an element does not constitute structural error.” And other than one case decided a month after Neder, CAAF has not since relied on Mance to find that omission of an instruction on an element is structural error. So, “to alleviate further confusion on this issue, today we overrule Mance to the extent it conflicts with the holding in Neder that omission of an instruction regarding an element may be tested for harmless error.” Slip op. at 15. So, this error is not inherently prejudicial, and may be harmless.
And harmlessness is exactly what CAAF finds:
[T]he omission of instructions on the third and fourth elements of attempt did not materially prejudice Payne’s substantial rights. Payne did not contest those elements at trial as he relied primarily upon the defense of entrapment. Furthermore, the evidence on those elements, which includes the logs of the explicit chats between Payne and “Marley,” was overwhelming. We are therefore satisfied beyond a reasonable doubt that the omitted elements were both “uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” Neder, 527 U.S. at 17.
Slip op. at 15-16 (citation omitted). This result is rather unremarkable under the circumstances. Except for one thing. “We are therefore satisfied beyond a reasonable doubt. . .” writes Judge Erdmann. The error in this case was forfeited by the defense counsel’s refusal to make a proper objection, and so is tested for plain error (where an appellant has the burden to show prejudice). Mere harmlessness is enough to show that Appellant failed to meet his burden. But harmlessness beyond a reasonable doubt is the standard needed to affirm a conviction over preserved constitutional error. CAAF’s finding on this point looks like an implicit nod to the Powell burden shift that I have repeatedly written is erroneous (because it illogically shifts the burden back to the Government when the error is constitutional in nature). See, for example, this portion of my analysis of CAAF’s opinion in United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013) (CAAFlog case page).
Judge Erdmann doesn’t cite Powell in his opinion of the court in Payne, or provide any explanation for finding as much as harmlessness beyond a reasonable doubt vice merely finding no prejudice. Perhaps the court was just that convinced.
But the failure (or perhaps refusal) of the civilian defense counsel to make a proper objection in this case is a consideration that gets a number of pages in Judge Erdmann’s opinion. The fact that a unanimous court finds the error in this case to be harmless under the preserved error standard means that the discussion about the defense counsel’s inadequate objection is mere dicta.
Which, considering the defense counsel’s behavior, is unfortunate.
• AFCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis