CAAF will hear oral argument in the Army case of United States v. Bennitt, No. 12-0616/AR (CAAFlog case page), on Wednesday, December 10, 2014. This will be CAAF’s second review of Private Bennitt’s 2010 court-martial, where he was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of involuntary manslaughter by aiding and abetting in violation of Article 119(b)(2). He was also convicted, in accordance with his pleas of guilty, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.
On initial review in 2012 the Army CCA affirmed the findings and sentence. However, CAAF reversed. In an opinion authored by Judge Stucky, CAAF found that Bennitt’s distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died while in the Appellant’s barracks room in 2009, did not amount to an offense directly affecting the person sufficient to support a conviction of involuntary manslaughter in violation of Article 119(b)(2). United States v. Bennitt, 72 M.J. 266 (CAAFlog case page).
That left Private Bennitt convicted of four specifications each of wrongful use and distribution of a controlled substance – offenses he pleaded guilty to without the benefit of a pretrial agreement – and CAAF remanded the case to the Army CCA to reassess the sentence. But the Army CCA again affirmed the entire adjudged sentence. This action caught my attention, and I wrote about it in a 2013 post titled: Bennitt’s sentence remains the same. CAAF subsequently granted review of a single issue:
Whether the army court of criminal appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.
The Army CCA based its action on its conclusion that:
Although appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for Courts-Martial 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence
United States v. Bennitt, No. 20100172, slip op. at 2 (A.Ct.Crim.App. Sep. 25, 2013). But Appellant’s brief to CAAF asserts that the death of LK was not a proper matter in aggravation because the manslaughter conviction was the only offense that involved her:
During the plea colloquy, PV2 Bennitt admitted to distributing oxymorphone to Privates (PVT) Swindle, Doherty, and Waldroop on February 14, 2009. (JA 51-57). Private Bennitt also asserted that he only distributed alprazolam once to PVT Doherty on February 14, 2009. (JA 58-60, 69-70). Private Bennitt never admitted to distributing oxymorphone or alprazolam to LK during the providence inquiry. (JA 51-60, 69-70).
App. Br. at 5. Because of this, Appellant asserts that any facts involving the death of LK are uncharged misconduct, and that such evidence is generally inadmissible and must be tested for under prejudice under M.R.E. 403. App. Br. at 14. But the Government feels differently, relying on the fact that there was a presentation of the case on the merits that went well beyond Appellant’s pleas of guilty and included significant evidence about his distribution of drugs to LK.
The Government asserts:
Part of the government’s case in chief included appellant’s confession, which related directly to the distribution of drugs to Ms. LK. Therefore, evidence of Ms. LK’s death is directly related to the charged conduct, as originally reflected on the charge sheet, and the conduct of which appellant remains guilty. Therefore, appellant improperly terms this as evidence of uncharged misconduct.
Gov’t Br. at 7-8 (emphasis added). It’s indisputable that the charged offenses encompassed Appellant’s distribution of drugs to LK, but it’s not nearly so clear that his convictions do the same. If the record supports Appellant’s position that he did not plead guilty to any drug offense involving LK, then the posture of the case puts Appellant’s actual distribution of drugs to LK outside of the facts of any specific offense of conviction.
But the Government’s brief also discusses the appropriateness of using acquitted conduct in court-martial sentencing:
That said, the Supreme Court ruling in Booker did establish a constitutional rule. The Supreme Court cases regarding the federal sentencing guidelines, constitutionally confirms the lawful consideration of acquitted conduct at sentencing. At the sentencing phase of a federal trial, the judge must make factual determinations in order to adjust the maximum possible punishment. Judges are granted broad discretion in determining how acquitted conduct factors as an aggravator to the ultimate conviction, if it applies at all. The first case to confirm the constitutionality of acquitted conduct as evidence in aggravation was Williams v. New York. As seen in Booker, this remains a constitutionally permissible example of judicial discretion.
There is an extra role for acquitted conducted in a court-martial proceeding. Our rules of procedure do vary from the federal sentencing practice. The Supreme Court “observed that military sentences are aggregate sentences not apportioned among the various offenses of which an acc0sed is convicted. There are many reasons why a fact finder or panel may reach a particular conclusion. We frequently referenced the “mixed verdict” phenomenon, which may render a conviction for some charges, and not reach guilty on all related offenses. It is not appropriate to get into the mind of the fact finder, and the deliberations on these issues are protected. As Winckelman explains in its general holding, the Army court is well suited to evaluate the evidence as it was presented, and is entitled to review the case in its entirety.
Gov’t Br. at 14-15.
In a reply brief Appellant asserts that the Government’s position on appeal is contrary to its position at trial:
Here, the government asks this Court to ignore the fact that the military judge specifically asked the government—twice, which charges and specifications it intended to prove up during the contested portion of PV2 Bennitt’s trial. (JA 94-96, 99-100). The government ignores the fact that it never told the military judge it intended to prove up additional acts of misconduct that could be encompassed within Specification 3 of Charge II.1 (JA 96, 99-100).
Reply Br. at 2. Appellant also asserts that the death of LK is not a proper matter in aggravation even if his distribution of drugs to her is a proper matter, because of the lack of a but-for causation:
As PV2 Bennitt previously explained, “even if PV2 Bennitt’s distribution of oxymorphone to LK were admissible, her death was not directly related to or the result of this act.” (Br. 14). This is true whether evidence of the distribution was admissible as charged misconduct or not.
If this Court applies the plain meaning of the phrase “directly relating to or resulting from . . .” to R.C.M. 1001(b)(4), then evidence of LK’s death is only admissible if PV2 Bennitt’s distribution of oxymorphone was the “but for” cause of that result. As shown by the Supreme Court’s decision in Burrage v. United States, 134 S.Ct. 881 (2014), the evidence presented in PV2 Bennitt’s case cannot establish his actions as the “but for” cause of LK’s death.
Reply Br. at 5.
I believe that CAAF’s decision in this case will turn on application of the sentencing procedures explicitly set out in the Manual for Courts-Martial. Rule for Courts-Martial 1001(b)(4) permits the Government to introduce evidence in aggravation, which is defined as:
(4) Evidence in aggravation. The trial counsel may present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty. Evidence in aggravation includes, but is not limited to, evidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of an offense committed by the accused and evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense. In addition, evidence in aggravation may include evidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. Except in capital cases a written or oral deposition taken in accordance with R.C.M. 702 is admissible in aggravation.
CAAF avoided a detailed consideration of R.C.M. 1001(b)(4) in its 2010 decision in United States v. Moore, __ M.J. __, No. 09-5005/AF (C.A.A.F. Jan. 22, 2010) (summary disposition) (discussed here), in part due to a thin trial record. But Bennitt presents a well-developed record for CAAF to review, and the court’s decision in this case will likely be a significant precedent interpreting R.C.M. 1001(b)(4).
• United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page)
• ACCA opinion
• Blog post: Bennitt’s sentence remains the same
• Blog post: Two new grants (one predicted, the other a trailer) and the return of Senior Judge Cox
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview