Back in October I wrote a post about a comeback for the “ultimate offense doctrine” at the Army CCA. Over the prior 15 months, the court used the doctrine to set aside seven guilty pleas to violations of Articles 90, 91, and 92, for misconduct that amounted to the offense of breaking restriction in violation of Article 134.

The ultimate offense doctrine really is a military justice wonk’s dream. A part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 18 USCMA 125, 128 (1969). It’s also the Loch Ness Monster of military appeals; everyone knows it’s there, but its rare appearance is the stuff of legend. But the Army CCA’s string of seven decisions reversing guilty pleas while mentioning or discussing the doctrine was an unambiguous sighting. And from my vantage point last October, it looked like Appellate Military Judge Colonel Eric Krauss (a fellow ZooMass alum) had tamed the monster and put it to work, as he was the sole judge to participate in each of the seven reversals and he authored the first such decision (United States v. Gillum, No. 20111156 (A.Ct.Crim.App. Jul. 27, 2012) (link to unpub. op.)).

But then in January I noted that a panel of the CCA that didn’t include Judge Krauss (but did include the new Chief Judge, Brigadier General Pede) rejected application of the doctrine in an opinion that “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.” United States v. Bartsh, No. 20111104, slip op. at 3 (A.Ct.Crim.App. Dec. 31, 2013) (link to unpub. op.). The comeback was slowed.

Now the CCA has ended the comeback. In a published, en banc decision, the court reconsiders the opinion that was the basis for my October post, rejects the application of the doctrine, and affirms the guilty plea to willfully disobeying an order of a superior commissioned officer in violation of Article 90. United States v. Phillips, No. 20120585, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.) (link to slip op.). Senior Judge Lind (who dissented from the earlier decision) writes for the court on reconsideration, with Judge Krauss (who authored the earlier decision) and Senior Judge Yob (who concurred with Judge Krauss) both writing separately and both concurring in part and dissenting in part.

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. He violated that order. Eventually, he pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

In the CCA’s initial review of the case, Judge Krauss wrote for the majority of a three judge panel that rejected the plea and dismissed the charge, reasoning:

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.

United States v. Phillips, No. 20120585, slip op. at 2, 2013 WL 5402231 (A.Ct.Crim.App. Sep. 23, 2013) (the ACCA deleted the slip opinion from its website and I didn’t keep a copy, but it used to be here). The Government then moved for reconsideration and suggested en banc review, both were granted, and Senior Judge Lind now takes the majority and leads the court to reverse the decision from which she once dissented. Hers is a short opinion, with echos of Judge Haight’s opinion in Bartsh (the case I discussed in January as slowing the doctrine’s comeback):

We do not find issue with either the charging decision or the plea. There is nothing in the record that gives any indication the commander’s intent in giving this order was to escalate the criminal liability of appellant. See United States v. Landwehr, 18 M.J. 355, 356-57 (C.M.A. 1984) (“[A]n order given solely for the purpose of increasing the punishment for not performing a pre -existing duty should not be made the grounds of an Article 90 violation . . . .”). To the contrary, it appears prudent for CPT PE to have issued such an order given appellant’s prior history of absenting himself while pending disciplinary action. Under the facts of this case, either Article 90, UCMJ, or Article 134, UCMJ (breaking restriction), were viable offenses properly chargeable by the government, assuming the government had evidence of the terminal element (conduct prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces) for a breaking restriction charge. This Court may not prescribe which one the government should charge when there is a legal and factual basis for both.

Phillips, __ M.J. at __, slip op. at 3. If that’s not clear enough, a footnote spells out the majority’s position explicitly:

We note that had the government decided not to prosecute this conduct under a theory of willful disobedience, there would have been no legal obstacle to charging this under the lesser-included offense of failure to obey an order, Article 92, UCMJ. In other words, we do not believe that the Presidentially-defined offense of breaking restriction under Article 134, UCMJ, somehow preempts the statutory offenses of disobedience found in Articles 90, 91, and 92, UCMJ. The appropriate maximum punishment in those cases of disobedience that also satisfy other offenses is an altogether different question.

Slip op. at 3 N.6.

Senior Judge Yob’s dissent focuses on the facts of the case, and he finds that “the facts indicated nothing lifting the commander’s order above anything more than the simple imposition of restriction.” Slip op. at 6. Because of this, Senior Judge Yob “would set aside appellant’s conviction for willful disobedience of a superior commissioned officer as being improvident.” Slip op. at 6.

But Judge Krauss’ dissent, which begins by “join[ing] fully with Senior Judge Yob’s dissent,” goes much further:

By accepting appellant’s plea under Article 90, UCMJ, in this case, the majority effectively endorses the abolition of any meaningful distinction between the offenses of willful disobedience and breaking restriction. The decision conflates the two types of “ultimate offense” situations that arise and exaggerates criminal liability for what has always been understood as a minor offense under Article 134, UCMJ, breaking restriction. In so doing, the majority allows commanders a degree of prosecutorial discretion that undermines the scheme of crime and punishment as defined by Congress and the President under Articles 95 and 134, UCMJ, and runs afoul of an essential corollary to the rule of lenity by favoring the general over the specific criminal provision.

Slip op. at 7. Judge Krauss bases his discussion on the limitation in the Manual for Courts-Martial that sets the maximum punishment for an orders violation that is also a separate, lesser offense, as the maximum for that lesser offense. The text creating this limitation is missing from the 2012 edition of the Manual, but since the 1984 edition it has been contained in paragraph 16e of Part IV of the Manual, and prior editions had it as footnote 5 in the Table of Maximum Punishments. In a CAAFlog post on July 31, 2012, I discussed this omission and concluded that it is a misprint and not the product of a substantive change. Judge Krauss reaches the same conclusion, writing that the language “was inadvertently omitted.” Slip op. at 8 N.8. Unfortunately, Judge Krauss doesn’t cite my post (meaning he either doesn’t know of it, or doesn’t care to acknowledge it; both options are pretty depressing).

The Manual’s limitation leads to cases where, as Judge Krauss notes, “military judges accept pleas of guilty under Article 90, UCMJ, only to declare, sua sponte, that because the disobedience amounted to nothing other than breaking restriction they would apply the maximum punishment for the latter offense.” Slip op. at 9-10. But “the good majority of pleas similar to these are like this case where the military judge and parties are silent as to the apparent issue.” Slip op. at 10. So he finds that:

Clarification is worthwhile and the straightforward enforcement of the law as defined is the better approach. When a soldier breaks restriction he should be charged and punished for the offense of breaking restriction.

Slip op. at 10. Judge Krauss’ dissent continues through discussion of the two ultimate offense situations (the first involving an order to fulfill a preexisting duty, issued just to increase the penalty of failure to fulfill the duty; the second involving an order of restraint under the UCMJ) and he ends with discussion of the application of the rule of lenity, “requiring enforcement of a specific criminal provision over a general provision in circumstances where both apparently apply.” Slip op. at 11. He concludes:

The majority’s reading of willful disobedience requires nothing more than an intentional violation of restriction that renders breaking restriction, as an offense, essentially superfluous or, at least relegates it to instances of unintentional breach or, perhaps, where a commanding officer has delegated authority to noncommissioned officers to impose restriction. . . .

This departure from the rule of law as defined by Congress and the President is neither necessary nor justified. While a commander’s prosecutorial discretion and ability to enforce orders with criminal sanction are fundamental, they are limited by the law. The rule of law exists as much as a check upon the authority of those in power as it does as a tool for the enforcement of that authority.

Slip op. at 12.

Senior Judge Lind (with the majority) and Judge Krauss (with Senior Judge Yob) are clearly in stark ideological opposition on this issue. Senior Judge Lind sees it as a choice left to the prosecutor’s discretion, while Judge Krauss sees that discretion subject to significant limitations in law. Both are compelling arguments and any wonk has to get excited at the possibility that CAAF will weigh in – CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

One Response to “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine”

  1. Tstan says:

    Z, great post.  As DC for one of the seven guilty pleas in the other cases, I thought overturning two specs we bargained for was judicial overreach.  I agree with Senior Judge Lind in this circumstance given the deal we negotiated in our case.
    Also, shout-out to Stewie for the earlier LLCoolJ comment.  Don’t call it a comeback indeed.