CAAF will hear oral argument in the Marine Corps case of United States v. Captain, No. 15-0172/MC (CAAFlog case page), on Tuesday, October 27, 2015, at 9:30 a.m. The case presents one issue of ineffective assistance of counsel in sentencing and one issue of involving the convening authority’s action:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

In accordance with a pretrial agreement, the appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s detailed military defense counsel “did not present any extrinsic evidence of Sgt Captain’s good military character,” and further “during his sentencing argument, trial defense counsel asked the military judge to sentence Sgt Captain to a dishonorable discharge.” App. Br. at 2. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge.

The convening authority suspended all confinement in excess of four years in accordance with the terms of the pretrial agreement. The convening authority also disapproved the fine (presumably as an act of clemency). But as for the remainder of the sentence, the convening authority’s action provides only that:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Gov’t Br. at 19 (quoting action). This approval omits the adjudged dishonorable discharge.

The appellant’s case was forwarded for automatic review by the Navy-Marine Corps CCA, where the appellant asserted ineffective assistance of counsel (IAC) in his defense counsel’s failure to present sentencing evidence and argument in favor of a dishonorable discharge. In particular, the appellant asserted that he did not consent to his defense counsel asking the court-martial to adjudge a punitive discharge. The CCA ordered a DuBay hearing (a post-trial fact-finding hearing), and then it rejected the appellant’s claims of IAC. The DuBay found, and the CCA agreed, that the appellant’s defense counsel made a tactical decision to not call witnesses (for fear of evidence the Government would offer in rebuttal), and that the appellant and his counsel had agreed to request a dishonorable discharge in the hope that it would lead to a reduced sentence of confinement (even though counsel failed to create a record of that agreement). United States v. Captain, No. 201300137 (N-M. Ct. Crim. App. Jul. 27, 2014).

Notably, the CCA’s decision does not address the convening authority’s failure to include the punitive discharge in his action approving the sentence. It is unclear if the appellant raised this issue before the CCA.

Two significant and seemingly bright-line military precedents will be tested in CAAF’s review in Captain.

First, military law is clear that “when defense counsel does seek a punitive discharge or does concede the appropriateness of such a discharge – even as a tactical step to accomplish mitigation of other elements of a possible sentence – counsel must make a record that such advocacy is pursuant to the accused’s wishes.” United States v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994). No such record was made in this case.

Second, “in light of the convening authority’s broad discretion to provide relief from the adjudged sentence and the importance of this role in the court-martial process, when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect.” United States v. Wilson, 65 M.J. 140, 141 (C.A.A.F. 2007). “Accordingly, the convening authority must exercise care in drafting the action.” Ibid. The convening authority’s action in this case appears unambiguous in its failure to approve the adjudged punitive discharge.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

39 Responses to “Argument Preview: United States v. Captain, No. 15-0172/MC”

  1. Charlie Gittins says:

    My guess on the CA action issue is that CAAF will find an ambiguity where there is none and remand back for “clarification” of the CA’s intent in a new action.  I betting they give the Government a “do-over” where none is actually warranted, saving the Government from its own incompetence, yet again. 

  2. stewie says:

    Pretty settled law isn’t it that mistakes like these in the action innure to the deteriment of the government?

  3. Zachary D Spilman says:

    Well, the AFCCA has been pretty lenient when a convening authority did not exercise care in drafting the action. See United States v. Carr, No. ACM 38025 (A.F. Ct. Crim. App. Aug 15, 2013) (discussed here). 

    But I’m not aware of other cases raising this issue since Wilson.

  4. Ronald Humperdink says:

    CA’s action is ambiguous in that it didn’t explicitly disapprove the DD either. CA’s action ought to address each part of the adjudged sentence. When it doesn’t, I don’t see it as “facially complete [or] unambiguous.”
    What to do about it at the CCA level or now is a different question.

  5. Zachary D Spilman says:

    The President of the United States disagrees with you, Ronald Humperdink.

    The action shall state whether the sentence adjudged by the court-martial is approved. If only part of the sentence is approved, the action shall state which parts are approved. A rehearing may not be directed if any sentence is approved. 

    R.C.M. 1107(f)(4)(A) (2015) (emphasis added).

  6. John F. O'Connor says:

    As I’ve said before (1 Journal of Military & Veteran Law 9), courts need to stop treating CA actions like contracts and stop using contract rules of construction to give effect to CA actions.  Contracts are bilateral, and plain meaning rules make eminent sense when we are talking about the collective intent of the contracting parties.  CA actions are unilateral decisions (cabined at times by a PTA).  In that sense, they are more like a will, where all that really matters is what the testator intended.  So courts should ditch contract rules of construction and use any means available to conform a CA action to actual intent, even if the CA action as literally written would call for a different result.  

  7. Bill Cassara says:

    Let’s not forget the obvious. It isn’t the CA drafting the Promulgating Order. It is someone within the OSJA but is, ultimately, the SJA’s responsibility.

  8. Ronald Humperdink says:

    The President disagrees with which part of my comment specifically? I will confess that I don’t see how the cited language is responsive to my comment. 

  9. Cloudesley Shovell says:

    J O’C–I respectfully disagree.  A CA’s action, particularly that part approving the sentence, is incredibly easy to do correctly.  I hold the government, and its lawyers, to a very high standard, and  the law should too.  If the government, meaning in this case a relatively senior judge advocate and a senior officer CA, cannot put together the simplest of paragraphs in plain English without making a colossal screw up such as this, the government deserves to lose.
    This also isn’t the first case where a CA has forgotten to approve a punitive discharge, and it won’t be the last.  Instead of changing the law to adapt it to JAG incompetence, perhaps the various service JAGs ought to deal with the incompetence instead.  Maybe relieve a JAG (or two, whatever it takes) for cause, pour encourager les autres.  My fellow dead English Admiral John Byng comes to mind.
    Apropos of nothing, I chuckle at the accused’s name.  Sgt. Captain.  I once new a Captain Major, but lost touch before he got promoted to Major Major.  And Sgt. Captain was once Corporal Captain, just like Radar on MASH.
    Kind regards,

  10. Zachary D Spilman says:

    Waiter: Here’s your tuna sandwich.

    Convening Authority: Where’s my soup?

    Waiter: You only ordered a tuna sandwich, Sir.

    Convening Authority: But it’s a soup and sandwich special!

    Waiter: You didn’t order the special, you only ordered a sandwich. I have it right here in writing signed by your own hand. Tuna sandwich to be served at your table. 

    Convening Authority: Well obviously I intended to order the soup!

    Waiter: Then why didn’t you?

    Staff Judge Advocate: It’s my fault. I wrote down the order and forgot the soup.

    Convening Authority: Yeah, it’s his fault! So get me soup.

    Waiter: But you signed it Sir.

    Convening Authority: So?

    Waiter: So that’s what you ordered.

    Convening Authority: You can’t possibly be serious. Heck, I didn’t even read it. I just sign whatever they tell me to sign.

    Waiter: How am I supposed to know that?

    Convening Authority: Because I’m telling you now!

    Waiter: It sounds like you’re changing your mind to me.

    Staff Judge Advocate: Obviously he wanted soup. We wouldn’t have come to a restaurant if he didn’t want soup.

    Convening Authority: Yeah. Obviously I wanted soup. Otherwise I wouldn’t have come to a restaurant.

    Waiter: So you made up your mind before you even saw the menu?

    Convening Authority: Yes!

    Staff Judge Advocate: No!

    Convening Authority: Huh? Oh yeah, I mean no! I carefully considered the menu before I decided what to order.

    Waiter: Look. I’ll give you the soup, OK? 

    Convening Authority: Of course you will.

    Waiter: Anything else?

    Convening Authority: Now that you mention it, I’d like a turkey sandwich instead of this tuna… 

  11. stewie says:

    JOC, what if the CA intended that result? What you are saying is that instead of requiring the CA to do something relatively simple (say what he means in plain English), we should go back each time he doesn’t approve a punitive discharge, to make sure he didn’t mean to do so.
    A better recommendation, from a government POV, would be to make the results of trial binding UNLESS the CA specifically disapproves a section.  Of course, in that scenario, CA errors innure to the detriment of the accused. Either way, it ain’t hard for the CA to do this, particularly when at least 3-4 attorneys (COJ, DSJA, SJA, possibly SVP) and a paralegal, and the CA all see this at some point.

  12. k fischer says:

    I think if you gave you, me, DCCG, and Stewie about a month without any distractions where we could focus, we could come up with a pretty decent screenplay.  That my friend, was awesome.  I hope that came from your brain and you didn’t cut and paste that from somewhere else.

  13. stewie says:

    Would you taste the soup? Is there something wrong with the soup? No, would you just taste the soup? Is the soup too hot/cold? No, please just taste the soup.  Ok, where’s the spoon?

  14. k fischer says:

    Can the Convening Authority grant clemency in this Article 120 case, though?  Wouldn’t the failure to approve a punitive discharge effectively be an act of clemency for Sgt. Captain? 
    So, to take Zachary’s brilliant analogy:

    Convening Authority:  Wait a second, I just noticed that the sandwich costs $7.00, but your soup and sandwich special on the board out front costs $7.00.  So, why can’t I just tell you I want my soup now?  I’m obligated to pay the same price, aren’t I?
    Waiter:  Good point, Sir.  Sorry to trouble you.

  15. John O'Connor says:

    Sir Cloudesley,
    Methinks you’ve been bobbing up and down off the coast of the Isles of Scilly for too long.  Yes, it’s attractive in some ways to punish incompetent drafting of a simple CA’s action, but I think the objective should be, in all cases, to try to implement actual intent.  Like the exclusionary rule, courts might view sticking the Government with a result it didn’t intend is a way to incentivize more carefully drafted CA actions.  But practically everyone on this site has lamented the fact that the military justice system rarely results in personal consequences for JAGs who have long since moved on before the appellate hammer drops.  And I have my doubts about whether that sort of motive, if it exists, is a proper part of the judicial function.
    I’ve long thought that a CA action should separate each adjudged punishment and then have a series of boxes under each for “approved,” “disapproved,” “approved and ordered executed,” “suspended for ____ months,” etc.
    Stewie, if the CA intended to disapprove the punitive discharge, I imagine there would be extrinsic evidence consistent with that (like no appellate leave, and either returning the accused to active duty or processing him for administrative discharge).  I doubt it’s really difficult to figure out actual intent as it relates to a punitive discharge.  I will say, given that most CA actions approve the adjudged sentence except as required by a PTA, it might make sense, as you suggest, to have CA actions begin with a presumption of approval of the adjudged findings and sentence except as modified within the CA action.  At least then, you’d have the accused (and hopefully his counsel) squawking on the front end if an error was made. 

  16. RY says:

    All that is missing from the little screenplay is “a No soup for you!” Seinfeld reference.

  17. stewie says:

    The lack of appellate leave wouldn’t be dispositive, and neither would the absence of admin discharge for various reasons. You’d still have to go back and clarify each time with the CA that he didn’t intend to grant clemency.  The idea that because most CAs don’t give clemency, this one probably didn’t either in a particular case, isn’t very compelling as an argument to me.
    I also don’t see why it’s a problem to expect the CA to do a very simple thing and hold him/her to it if they fail.  It would seem to be a mistake rarely repeated.

  18. RY says:

    Incidentally, don’t the revisions to Article 60 make this a moot issue for the most part going forward?  A CA can no longer, absent a PTA provision to the contrary, disapprove a punitive discharge. 

  19. stewie says:

    Depends on the offense…for minor ones a CA still has pretty broad authority, as well as for some, older cases.

  20. k fischer says:

    C’mon guys catch up.  I made that point over an hour ago at 10:16. 
    Was this case tried prior to the McCaskill changes to the UCMJ regarding CA Authority?  And, I think Abusive Sexual Contact under Article 120 would not be considered minor.  If the CA cannot disapprove a punitive discharge, but fails to approve a punitive discharge, then why can’t the CA go back and fix it on remand?

  21. Zachary D Spilman says:

    We know that the convening authority had the power to disapprove the punitive discharge because the sentence in this case was adjudged before the effective date of the new Article 60(c).

    The CCA’s opinion (link at the end of the post above) states that the sentence was adjudged on January 11, 2013.

    The new Article 60(c) (limiting a convening authority’s discretion when taking action on the results of a court-martial) was enacted on December 26, 2013, and took effect on June 24, 2014. You can read all about it in my series of posts on the 2013 changes to the UCMJ.

    So, the new limitations on a convening authority’s power have no effect on this case.

    Notably, in the National Defense Authorization Act for Fiscal Year 2015, passed in late 2014 (discussed here), Congress amended the limitations enacted in 2013 to provide that:

    With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before [June 24, 2014] and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).

    §531(g)(2)(A)(ii) of Pub. L. No. 113-291.

  22. k fischer says:

    Any updates on the Brandon Wright court-martial?

  23. James says:

    As the TC on the case, I can say the CA disapproved the $50,000 fine CDR Maksym levied on this accused when his DC has a PTA without fine protections, but it’s eminently frustrating that the DD was not explicitly approved. This serial rapist earned his DD. 

  24. Alfonso Decimo says:

    Nobody else mentions it, but the NMCCA and the appellate defense litigators deserve some criticism for missing the error on the CA’s action.

  25. Ronald Humperdink says:

    Serial rapist. Whoa.

  26. k fischer says:

    “Serial rapist” indicates to me that Captain would have been convicted of more than one rape, James.  It appears that he pleaded guilty to only one specification of abusive sexual contact.  Now, if you had other evidence in your back pocket that prevented Captain’s counsel from calling witnesses to say this was a one time thing, then it does not appear that Defense counsel was IAC because the MJ might have given him much more time if you impeached the witness with “did you know” type questions.  I don’t understand the fine, though.  As far as a fine protection goes, I don’t quite understand why a fine would be appropriate in this case when it does not involve financial loss.  I wouldn’t even consider getting fine protection in a PTA in a sex assault case.  But, perhaps I’m down with IAC…..yeah… know me…….
    And, 4 years is not very long for a serial rapist who is going to commit more rape when he gets out because he is a serial rapist, which is what serial rapists do. Why would the convening authority agree to such a preposterous deal if this guy is going to get out of the Corps and rape some more people?

  27. k fischer says:

    Learned AX, aka “the wise,”
    I’m not sure that I would fault the appellate defense counsel with missing issue because the NMCCA simply stated:
    We affirm the findings and sentence as approved by the convening authority.
    Could Captain not have applied for a writ of cert and let the NMCCA’s opinion stand?  The CA did not approve the DD, so sentence approved only by the CA seems to be the 4 years and rank reduction.

  28. Tami a/k/a Princess Leia says:

    Serial “rapist” when only convicted of abusive sexual contact?  Seems like an exaggeration.
    I think the fair thing to do is to hold the government to its mistake and there is no punitive discharge.  It’s not that hard to add “and except for the dishonorable discharge, will be executed.”
    Mmmmmm, jambalaya!  Next!

  29. Zachary D Spilman says:

    The CCA clearly interpreted the convening authority’s action as approving a dishonorable discharge:

    The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to pay grade E-1, forfeiture of all pay and allowances, a $50,000.00 fine, and a dishonorable discharge. The convening authority disapproved the fine and approved the remaining sentence

    Slip op. at 1-2.

    I’d expect the issue to have been raised at the CCA. If nothing else, the issue would have been highlighted by different statements of the case in the briefs. Perhaps oral argument will provide some clarity. 

    As for “hold[ing] the government to its mistake,” as Tami wrote above, I think the idea that the convening authority’s action in this case involves a mistake is an absolute fallacy. When a convening authority – who must approach his duties with impartiality – disapproves a punitive discharge, that is no more likely a mistake than the approval of a punitive discharge. See United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003) (convening authority disqualified if he displays an inelastic attitude toward the performance of his post-trial responsibility). 

    In other words, that’s no mistake, Tami

  30. Zeke says:

    You say you are the prosecutor in this case.  I recommend you review your rules of professional conduct:

    Rule 3.8 Special Responsibilities Of A Prosecutor

    The prosecutor in a criminal case shall:
    * * *
    (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused . . .

    I understand your sentiment; it’s human and it is probably shared by many members of the public.  But, you’re the prosecutor, man.  You’re not a member of the rabble.  Wear the white hat.

  31. Phil Cave says:

    appellant and his counsel had agreed to request a dishonorable discharge in the hope that it would lead to a reduced sentence of confinement (even though counsel failed to create a record of that agreement). 

    Huuum.  No Blunk letter?
    United States v. Blunk, 17 U.S.M.C.A. 158 (1967)(Notably a case certified by Navy TJAG.), and see United States v. Danley, 70 M.J. 556 (N-M Ct. Crim. App. 2011).  In the old days, when UA cases were the primary source for courts, it was fairly common to have BCD-Strikers.  That is until one or two judges figured they’d give the BCD but add confinement because from their perspective the BCD alone wasn’t sufficient to punish the accused.

    I don’t quite understand why a fine would be appropriate in this case when it does not involve financial loss.  

    I don’t think there’s problem giving a fine in a case which does not involve pecuniary loss.  In fact have argued for it in some cases.  Had an officer case of CP one time, retirement eligible. Got a $50K fine, but no dismissal. There is a quite old case, which I can’t quite remember in which a fine was found “appropriate,” for a non-pecuniary loss charge.  Oooops, not that old; United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005).

  32. James says:

    The conduct at issue in the guilty plea was insertion of a finger into the anus of the victim who was asleep in her bedroom. Under the version of Article 120 at the time of the offense, penetration of the anus by a finger was not considered a sexual act, hence the abusive sexual contact charge.  
    I suppose the most accurate way to describe Sgt Captain would be a repeat alleged aggravated sexual assaulter. He was previously acquitted of Agg Sexual Assault, and I charged him with a years-old cold case Agg Sex Assault which was dismissed as part of the plea deal. I must be the first comment writer on CAAFflog to use a little hyperbole. I’m not on active duty or a prosecutor anymore, so I guess I was enjoying a little freedom of speech.  I proudly wore the white-hat throughout my career. I seriously doubt one comment on an inside-baseball military justice blog has a “substantial likelihood of heightening public condemnation of the accused.” Maybe I am underestimating the reader-ship of CAAFlog. I thought it was mostly a gathering place for defense hacks to make fun of the Big G. 
    My point is that it would be a shame for this individual not to receive the DD given his personal background.
    On the fine, CDR Makysm loves to give fines. He thinks they get the attention of service members and have the effect of general deterrence. That was his reasoning.   

  33. DCGoneGalt says:

    You don’t have to be a defense hack to make fun of the Big D.  But it helps.

  34. DCGoneGalt says:

    or the Big G.

  35. k fischer says:

    That was a slip of the Freudian variety, was it not?
    James, you might want to check with the hyperbole police about how long since there has been a hyperbole infraction on CAAFLOG, but I’m pretty sure others before you have commit a violation of the rules against hyperbole enforced by a poster with the pseudonym that rhymes with “Gooey,” as well as all three of Donald Duck’s nephews. 
    As far as the facts for which you have personal knowledge go, c’mon!  On what planet do women, or men for that matter, enjoy being awoken in such a manner where a person thinks, “I bet after I do this the sleeping party will awaken and ravage me?”  Seriously, instead of sexual assault prevention, perhaps the military should institute a block of instruction on romantic seduction designed to ascertain consent which begins with kissing.  I’m assuming that Sgt Captain and this female/male did not have a previous romantic relationship, otherwise, there might have been some sort of mistake of fact…maybe? 

  36. stewie says:

    James, actually the most accurate way to describe him is a one time abusive sexual contacter. Acquittals don’t count, and neither do dismissed charges. To be a serial something, you need more than one where someone other than you actually agrees they are guilty. As an aside, 4 years for an insertion of a finger into an anus is a mighty large sentence given I know actual, ya know, rapists, who have gotten significantly less time in jail.

  37. Zeke says:

    James,You didn’t “use a little hyperbole.”  You violated the rules of professional responsibilities as a lawyer.  

  38. stewie says:

    I feel like I’m the lettuce in the middle of a hyperbole sandwich.

  39. Concerned Defender says:

    October 23, 2015 at 2:04 PM

    As the TC on the case, I can say the CA disapproved the $50,000 fine CDR Maksym levied on this accused when his DC has a PTA without fine protections, but it’s eminently frustrating that the DD was not explicitly approved. This serial rapist earned his DD. 

    The facts of the case are either unclear, or shockingly trivial given the extraordinarily heavy handed sentence leveled at a GUILTY PLEA.   It appears from the facts that an intoxicated appellant with Mr. M at his residence drinking and playing video games.  He went to the bathroom (how long would his absence have been until Mr. M became suspicious?  I’d suspect a few minutes).  The appellant apparently saw Mrs. M intoxicated and passed out naked on the bed in the bedroom adjacent to the bathroom.  So he entered caressed her legs and put his finger in her anus for for a few moments, perhaps a minute or so.  
    From the appellants brief, this Soldier had significant mitigation, including 4 deployments to OIF and OEF.  I’m curious is James or the Military Judge ever set foot in a combat theater.  I know plenty of self-important TCs and MJs who never did. 
    So, as a result, this “serial rapist” as he’s called received a sentence of 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge!  So with 5 years of no income, that amounts to about a quarter of a million dollars in lost pay, on top of a $50,000 fine.  
    There must have been more behind the scenes like dismissing some charges for the 4 year deal to be palatable. 
    We’re talking about perhaps 2 minutes of discomfort for Mrs. M, aggravated by a few factors…  and the “victim” status…
    Folks have worse than that done to them at the doctors office or when they have bowel movements.  Good grief.  A finger in the butt gets a 4-time combat veteran a destroyed life? 
    Seems like an unbelievably heavy sentence for such disparate misconduct.  This goes beyond justice into retribution territory.