In United States v. Lemasters, No. 20111143 (A.Ct.Crim.App. Dec. 31, 2013) (link to slip op.), the Army CCA considered the appellant’s prosecution for sexual assault after he was acquitted by a state court of similar offenses arising out of the same incident. The appellant objected to his trial by court-martial on double jeopardy grounds, and renewed his objection on appeal by arguing “that the State of Virginia was acting as a ‘tool’ of the Army and that the state and the Army ‘colluded’ to prosecute appellant, thus resulting in a sham prosecution.” Slip op. at 3. The appellant asserted that the “Bartkus exception” precluded the second prosecution in his case. Bartkus v. Illinois, 359 U.S. 121, 123-124 (1959) (discussing the argument of a state “bringing its prosecution []as merely a tool of the federal authorities,” and “the state prosecution [being] a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.”).

Rejecting this argument, the CCA found “a notably absence of the application of this exception” in the military justice system. Slip op. at 4. “In fact, some courts have even questioned whether the exception exists at all.” Slip op at 5 (citations omitted). And even if the exception does exist and apply to courts-martial, the CCA concluded that there was no domination and that the military’s prosecution was based on separate military interests. Slip op. at 5.

Separately, in United States v. Barnes, No. 20110361 (A.Ct.Crim.App. Jan 9, 2014) (link to slip op.), the Army CCA found that it was plain and obvious error for the military judge to reject the appellant’s pleas of guilty, and held the Government to the terms of the pretrial agreement that would have been applied had the pleas been accepted. As a result, the CCA approved only reduction to E-4 and confinement for three months, and it disapproved a bad-conduct discharge and reduction to E-1.

The appellant had agreed to plead guilty to offenses arising out of his theft of mail while on duty in his unit spaces and his wrongful use of a credit card taken from the stolen mail, in addition to his improper use of his own Government travel card. But:

During the providence inquiry, appellant told the military judge he had no recollection of committing the offenses related to the mail theft and stolen credit card, including no recollection of ever using the card. Appellant stated he did remember his actions that constituted the Additional Charges concerning wrongful use of his government-issued credit card and the thirteen-hour absence without leave terminated by apprehension. Appellant did not assert any defense based on lack of mental responsibility. In fact, he specifically disclaimed any such defense, and explained to the military judge that he was certain after talking to his treating physicians that he did not commit the acts alleged in an unconscious state, but instead committed them with full consciousness and understanding, only to have later forgotten what he did. He described this as a situation similar to having amnesia.

Slip op. at 3. The military judge rejected the appellant’s pleas, commenting that “‘there’s plenty of circumstantial evidence that suggests [appellant]’s the one who committed these offense’ but that ‘there is no direct evidence other than potentially one picture of [appellant] being at the—at the food vendor, when [the] card was used.'” Slip op. at 4. The convening authority then withdrew from the pretrial agreement and appellant was convicted of some of the offenses by the military judge sitting alone as a special court-martial.

The CCA found the judge’s rejection of the pleas to be arbitrary, reasoning:

“If an accused is personally convinced of his guilt based upon an assessment of the government’s evidence, his inability to recall the specific facts underlying his offense without assistance does not preclude his guilty plea from being provident.” [United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011)] (citing United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977)). “A fortiori, reliance on information provided in the stipulation of fact or by defense counsel does not raise a substantial basis in law or fact to question the plea.” Id. (citing United States v. Luebs, 20 U.S.C.M.A. 475, 476, 43 C.M.R. 315, 316 (1971)).

Slip op. at 5. The court also found prejudice to the appellant “by denying him the benefit of the pretrial agreement.” Slip op. at 6. The existence of a pretrial agreement is the dispositive factor here, and distinguishes this case from United States v. Holsey, 72 M.J. 93 (C.A.A.F. 2013) (summary disposition) (CAAFlog case page), where CAAF found no prejudice in a military judge’s improper rejection of a guilty plea made without a pretrial agreement (a.k.a. a “naked plea”).

One Response to “Two interesting opinions from the Army CCA”

  1. Will says:

    I was the DC on the Barnes case and this was a very welcome and long overdue result.  One lesson I learned from this case was that there are no wrong times to object.  I should have objected to the MJ’s findings that SSG Barnes was not provident.  I did raise this issue in 1105s and informed the OSJA and CA that there was error.  It is interesting to me that the Government on appeal acknowledged the error, making this a much easier decision for the court. 
    This is also a case that should have gone to a panel, due to the extensive mitigating evidence in this NCO’s record.  I had been kicking myself for almost three years for not having SSG Barnes go with a panel.