CAAF decided the Army case of United States v. Phillips, 74 M.J. 20, No. 14-0199/AR (CAAFlog case page) (link to slip op.), on Tuesday, January 6, 2015. The court rejects application of the ultimate offense doctrine to Appellant’s plea of guilty to disobeying the order of a superior commissioned officer, in violation of Article 90, and reverses a half-century old precedent that premised Article 90 liability on a commissioned officer giving such an order “with the full authority of his office, [thereby lifting] it above the common ruck.” Slip op. at 8 (quoting United States v. Loos, 16 C.M.R. 52, 54 (1954)).
Judge Stucky write for a unanimous court.
Appellant 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, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.
But a three-judge panel of the Army CCA rejected the plea to willful disobedience, applying the ultimate offense doctrine. That doctrine is 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, 39 C.M.R. 125, 128 (C.M.A. 1969). It’s also rarely employed. But the doctrine made something of a comeback at the Army court where, as I noted over a year ago in a post titled Is the “ultimate offense doctrine” making a comeback?, the court applied the doctrine to reverse a number of guilty pleas for violations of Articles 90, 91, and 92.
However, the Government sought en banc reconsideration in Phillips and the full CCA reversed the panel in a published opinion. CAAF then granted review of a single issue:
Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”
Judge Stucky’s opinion doesn’t eliminate the ultimate offense doctrine from military law, but it strictly curbs application of the doctrine in the future.
His opinion begins by acknowledging the history of the doctrine:
The ultimate offense doctrine has a lengthy military history. See William Winthrop, Military Law and Precedents, 573 (2d ed., Government Printing Office 1920) (1895). It prohibited the escalation in severity of minor offenses “by charging them as violations of orders or the willful disobedience of superiors.” United States v. Hargrove, 51 M.J. 408, 409 (C.A.A.F. 1999) (per curiam).
Since enactment of the UCMJ, the President has recognized the ultimate offense doctrine as it applies to the offense of disobeying a superior commissioned officer under Article 90, UCMJ: “Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under [Article 90].” Manual for Courts-Martial, United States (MCM) ch. XXVIII, ¶ 169.b. (1951 ed.); accord MCM pt. IV, ¶ 14.c.(2)(a)(iv) (2012 ed.). In a footnote to the Table of Maximum Punishments, the President noted that the maximum punishment for failing to obey a lawful order under Article 92, UCMJ, did not apply in those cases “wherein the accused is found guilty of an offense which . . . is specifically listed elsewhere in [the] table.” MCM ch. XXV, ¶ 127.c. n.5 (1951 ed.). This Court interpreted both of these provisions to permit the escalated punishments where the superior officer’s order was made “with the full authority of his office, [thereby lifting] it above the common ruck.” United States v. Loos, 4 C.M.A. 478, 480, 16 C.M.R. 52, 54 (1954) (Article 92, UCMJ); see also United States v. Ranney, 67 M.J. 297, 300 (C.A.A.F. 2009) (Article 90, UCMJ); United States v. Byers, 40 M.J. 321, 323 (C.M.A. 1994) (Article 90, UCMJ).
Slip op. at 5-6 (emphasis added). A footnote adds that the current version of the Manual for Courts-Martial is missing the limiting language for the maximum punishment under Article 92, though the footnote does not discuss my conclusion (reached in this 2012 post) that the missing language is merely a printing error. Slip op. at 5 n.2.
Applying the doctrine to the facts of this case, Judge Stucky finds that Appellant failed to meet his burden to prove that the military judge abused his discretion in accepting Appellant’s plea of guilty to a violation of Article 90. Slip op. at 8. The military judge defined Article 90 to Appellant as requiring:
[A]n intentional defiance of authority. . . .
The command must be a lawful command. The command is illegal if it is unrelated to military duty and its sole purpose is to accomplish some private end that is arbitrary and unreasonable and/or if it is given for the sole purpose of increasing the punishment for an offense which is expected you may commit. As long as the command is understandable, the form of the command the method by which the command was communicated to you is not important. The combination, however, must amount to a command from your superior commissioned officer that is directly personal — personally, to you — directed personally to you. You must know that it is from your superior commissioned officer.
Slip op. at 7 (emphasis in original). Notably, however, a half-century ago the Court of Military Appeals noted:
It is undeniable that a superior officer may, by supporting a routine duty with the full authority of his office, lift it above the common ruck – and thus remove the failure to perform it from within the ambit of Article 86(1) [failure to go].
United States v. Loos, 16 C.M.R. 52, 54-55 (C.M.A. 1952).
But Judge Stucky’s opinion for the unanimous CAAF finds only that “Appellant failed to establish that his commander gave the order of restriction solely to improperly escalate the punishment.” Slip op. at 8. As for the need to lift the order “above the common ruck,” Judge Stucky explains:
[T]o the extent our previous jurisprudence suggests that the ultimate offense doctrine for Article 90 may be more expansive than the President’s language in MCM pt. IV, ¶ 14.c.(2)(a)(iv), by testing to see whether the order was given “with the full authority of his office, [thereby lifting] it above the common ruck,” it is overruled. Loos, 4 C.M.A. at 480, 16 C.M.R. at 54. We bid farewell to that colorfully stated, unclear, standard and rely solely on that set out in the MCM.
Slip op. at 8.
The court also rejects Appellant’s argument that the military judge was required to conduct a special inquiry with Appellant to ensure that he understood the difference between a violation of Article 90 and the offense of breaking restriction in violation of Article 134 (that has a dramatically lower maximum punishment).
CAAF granted review in six trailer cases to Phillips. They are:
- United States v. Nemeth, No. 14-0491/AR, (grant discussed here),
- United States v. Amaya, No. 14-0558/AR (grant discussed here),
- United States v. Twinam, No. 14-0619/AR (grant discussed here),
- United States v. Hagstrom, No. 14-0650/AR (grant discussed here),
- United States v. Baker, No. 15-0048/AR (grant discussed here), and
- United States v. Hardy, No. 15-0116/AR (grant discussed here).
I believe that all of these cases except for Twinam (for which I can’t find an opinion by the CCA) involve convictions for violation of Article 90, and so I expect that CAAF will summarily affirm in each of them in light of today’s decision in Phillips.
As for Twinam, the granted issue is:
Whether the military judge abused his discretion by accepting appellant’s plea when he ignored the ultimate offense doctrine and found appellant guilty of failure to obey an order or regulation.
(emphasis added). That looks like a violation of Article 92 – perhaps the last remaining place where a judicially-created part of the ultimate offense doctrine may survive.
ACCA opinion (three-judge panel) (deleted from the CCA’s website)
• Blog post: Is the “ultimate offense doctrine” making a comeback?
• ACCA opinion (recon. en banc), 73 M.J. 572
• Blog post: It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine
• Blog post: The ultimate offense doctrine returns to CAAF
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis