Back in October I asked, “Is the “ultimate offense doctrine” making a comeback?”

This old doctrine says that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 18 U.S.C.M.A. 125, 128 (1969). In my October post I noted that the Army CCA has resurrected the doctrine and used it to set aside pleas of guilty to violations of Articles 90, 91, and 92 (in a total of seven cases over 15 months).

But a three-judge panel of the Army CCA composed of Chief Judge Pede, Senior Judge Cook, and Judge Haight seems to have put an end to such dismissals as a product of the doctrine’s comeback. In United States v. Bartsh, No. 20111104 (A.Ct.Crim.App. Dec. 31, 2013) (unpub. op.) (link to slip op.) the panel considered the appellant’s plea of guilty to willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ, for:

having received a lawful command from Captain J.B., his superior commissioned officer, then known by [appellant] to be his superior commissioned officer, to not leave the Fort Hood installation, an order which it was his duty obey, did, at or near Fort Hood, Texas, on or about 5 July 2011, willfully disobey the same.

Slip op. at 2. At trial the military judge determined that “the maximum punishment for [the Article 90] offense will be that for breaking restriction” in violation of Article 134. Slip op. at 1. The maximum authorized confinement for the charged Article 90 offense is five years, but for the Article 134 offense of breaking restriction it is just one month. The appellant was only sentenced for the ultimate offense of breaking restriction, but he asked the CCA to dismiss the Article 90 offense like it did in the other cases, because “the Government improperly escalated the severity of the minor offense of breaking restriction.” Slip op. at 1.

The court declined. Judge Haight wrote for the court, beginning:

This particular fact pattern, where an order to remain within certain geographic limits is disobeyed, arises fairly often and seems to create a certain amount of confusion regarding the proper application of the “ultimate offense” doctrine. There are two relevant aspects to this doctrine, the first being what offense should be charged and the second being what maximum punishment should be applied.

Slip op. at 2. On the question of what offense should be charged, the court “find[s] no mandate in either policy or precedent that would require the government to charge breaking restriction as opposed to disobedience under Article 90, 91, or 92, UCMJ, as the facts may dictate. . . . These choices are matters well within the government’s discretion.” Slip op. at 3. On the question of the maximum punishment, the court quotes CAAF’s predecessor court to explain that, “Footnote 5 specifically applies only to Article 92 violations, and we have no power to extend it to violations of other Articles of the Code.” Slip op. at 3 (quoting United States v. Landwehr, 18 M.J. 355, 356 (C.M.A. 1984)).

Footnote 5 is a reference to a punishment limitation for violations of Article 92 that existed in the Manual for Courts-Martial prior to the 1984 edition. The limitation was moved to paragraph 16e of Part IV of the Manual in the 1984 edition. It then disappeared in the 2012 edition, but I discussed the reasons why this is a typo and not a change to the Manual in a 2012 post entitled, On page four of the CCA’s opinion in Bartsh, Judge Haight cites the 2008 manual for the limitation (but not my 2012 post to explain where it went… too bad).

Ultimately, rather than dismiss the Article 90 specification as the appellant requests, the CCA finds that “the factual basis provided by appellant during the providence inquiry is only sufficient to support a finding of guilty to failure to obey under Article 92(2), UCMJ.” Slip op. at 4. Having reduced the Article 90 conviction to a violation of Article 92, the court finds the application of the Manual’s punishment limitation “wholly appropriate.” And it affirms the sentence.

The court’s action in this case likely means the end of outright dismissals under the ultimate offense doctrine.

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