CAAF will hear oral argument in the Air Force case of United States v. Busch, No.15-0477/AF (CAAFlog case page), on Wednesday, October 7, 2015. The case questions the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012), with the following issue:

At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?

The appellant in Busch pleaded guilty to multiple offenses, including one specification of sexual abuse of a child in violation of Article 120b(c) (2012) for exposing his genitals and masturbating while the child watched via Skype. He committed that offense on multiple occasions, and he pleaded guilty to doing so between on or about February 1, 2013, and on or about May 20, 2013. Of note, like the granted issue, the appellant’s brief repeatedly uses the word alleged to describe the appellant’s misconduct, even though the brief does not asserts that his plea was improvident or otherwise flawed, and it seeks only to reverse the sentence.

When the appellant pleaded guilty, the military judge informed him that the maximum punishment he faced included confinement for 22 years and 1 month. The appellant elected to proceed with his plea and was sentenced to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge. There was no pretrial agreement.

Of the 22 year and 1 month maximum confinement sentence calculated by the military judge, 15 years of that was for the appellant’s sexual abuse of a child. CAAF’s review focuses on how the military judge reached that determination, and whether it is correct.

In Article 56, Congress delegated to the President of the United States the authority to prescribe maximum punishments for offenses under the UCMJ. These maximums are contained in Part IV of the Manual for Courts-Martial. But it’s possible for an accused to be convicted of an offense that does not have a maximum punishment listed in Part IV, and Rule for Courts-Martial 1003(c)(1)(B) provides instructions for how to calculate the maximum punishment for such an offense.

Unlisted offenses are most common under Articles 133 and 134 (where novel charges are possible). But after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments for the new offenses until May 15, 2013 (Executive Order 13643)(astonishingly, President Obama has still failed to prescribe model specifications).

That failure caused early problems, including leading one military judge to rule that the maximum punishment for sexual assault in violation of Article 120(b) (2012) is the jurisdictional limit of a summary court-martial (that ruling was reversed after the Government sought extraordinary relief). Other problems persist, in cases such as Busch.

Wen the appellant in Busch pleaded guilty, his defense counsel objected to the military judge’s calculation of the maximum punishment. The defense asserted that the maximum punishment included only confinement for one year, arguing that under R.C.M. 1003(b)(1)(B)(i), the appellant’s offense is included in or closely related to the offense of indecent exposure in violation of Article 120(n) (2006), for which the maximum authorized punishment in Part IV of the MCM includes confinement for only 1 year. The military judge overruled the defense objection, noting the President’s action setting maximum punishments that took effect after the last date of appellant’s misconduct:

The military judge rejected the objections saying, “How do you get that number under Charge IV given the President’s direction that it carry a penalty of a dishonorable discharge, 15 years and total forfeitures?” J.A. 38. The military judge went on to say,

What’s your view of Executive Order 42012 [sic] where the President has stated that the maximum punishment under paragraph 45b, Article 120b – Rape and Sexual Assault of a Child – is amended by inserting the following use of paragraph e: […] (3) Sexual Abuse of a Child […] a dishonorable discharge, forfeiture of all pay and allowances, and a dishonorable discharge?

Id.

In a colloquy with trial defense counsel, the military judge went on to express his belief that a charge of “indecent liberty is more applicable than indecent exposure[.]” J.A. 45-46. He then re-affirmed his use of the Executive Order by stating, “And the maximum punishment for indecent liberty of a child is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years, which I believe tracks with the punishment under the President’s executive order with regard to Article 120b for the conduct to which your client has pled guilty.” J.A. 46.

App. Br. at 4-5. The appellant points to this exchange as evidence that the military judge improperly used the Executive Order (signed after his committed his offenses) to determine the maximum punishment, in violation of the Ex Post Facto clause.

But the Government asserts that the Ex Post Facto clause is not implicated by these facts and that the the military judge based his sentence computation purely on R.C.M. 1003(c)(1)(B)(i). The Government’s brief argues that:

Although R.C.M. 1003(c)(1)(B) was never explicitly mentioned on the record, the context of the record makes evident that the military judge considered whether both indecent exposure and indecent liberties with a child were closely related to the charged offense of sexual abuse of a child. This is exactly the type of analysis contemplated by R.C.M. 1003(c)(1)(B)(i) for situations where an offense is not listed in Part IV of the Manual. The military judge determined indecent liberties to be the “more applicable” offense and accordingly set the maximum punishment for Charge IV as 15 years of confinement. While the military judge commented that the end result “tracks with the punishment under the President’s executive order with regard to Article 120b,” this does not negate the fact that the military judge performed a R.C.M. 1003(c)(1)(B) analysis in calculating the maximum punishment.

Gov’t Br. at 7-8.

The Air Force Court of Criminal Appeals agreed with the Government’s position on the facts of the case, concluding that the military judge applied R.C.M. 1003(c)(1)(B) and did not base his decision on Executive Order 13643. In an opinion that I discussed here, the Air Force CCA considered different ways of applying R.C.M. 1003(c)(1)(B) to determine a maximum sentence for sexual abuse of a child in violation of Article 120b(c) (2012), ultimately concluding that “there were three offenses in Part IV of the Manual that could be considered closely related offenses: indecent liberty, indecent act, and indecent exposure, which have maximum punishments of 15 years, 5 years, and 1 year, respectively.” United States v. Busch, No. 38530, slip op. at 8 n.8 (A.F. Ct. Crim. App. Feb. 11, 2015). However, the CCA decided that any error in computation of the maximum sentence was harmless because:

the appellant has not alleged that any misunderstanding as to the maximum sentence was a substantial factor in his decision to plead guilty. In fact, he chose to plead guilty without a pretrial agreement when he believed he could receive 22 years’ confinement for his offenses. In light of that, we are confident the appellant would still have pled guilty before a military judge even if he had been informed that the maximum sentence was 12 years.

Busch, slip op. at 9.

Even if CAAF agrees with the appellant that the military judge improperly based his maximum sentence computation on the post facto Executive Order 13643, it’s hard to see how the appellant wins on the question of prejudice. The appellant’s brief only asserts that the Government cannot prove harmlessness (and that’s the Government burden), however the Government’s brief stresses three important points. First, the Government notes that the appellant decided to plead guilty (without a pretrial agreement) despite the military judge’s computation. Gov’t Br. at 22. Second, the Government highlights the seriousness of appellant’s offenses, asserting that he would have received a sentence at least as severe as the one ultimately adjudged regardless of the correct maximum. Gov’t Br. at 22-23. Finally, the Government notes that “the Air Force Court of Criminal Appeals, a court with reassessment authority, already concluded that Appellant still would have pled guilty and still would have received the same sentence adjudged by the military judge alone and approved by the convening authority.” Gov’t Br. at 23 (emphasis added).

Case Links:
• AFCCA opinion
Blog post: The Air Force CCA grapples with R.C.M. 1003(c)(1)(B)
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

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