CAAF decided the Air Force case of United States v. Busch, 75 M.J. 87, No.15-0477/AF (CAAFlog case page), on Friday, January 29, 2016. The court unanimously rejects the appellant’s ex post facto challenge to the military judge’s determination of the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012). However, the court narrowly affirms the military judge’s determination, the findings and the sentence, and the decision of the Air Force CCA.

Chief Judge Erdmann writes for the court, joined by Judge Ohlson and Judge Diaz (of the Fourth Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ryan.

CAAF granted review of a single 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 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. The appellant’s misconduct occurred in early 2013; after the 2012 statute’s effective date but before President Obama prescribed maximum punishments for the new offense in Executive Order 13643. The President’s failure to prescribe a maximum punishment forced the military judge to determine the maximum punishment for the appellant’s violation of Article 120b(c) by resorting to Rule for Courts-Martial 1003(c)(1)(B), which requires comparing the charged offense to other offenses listed in the Manual and in the United States Code. If a different offense listed in Part IV of the Manual is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(i) permits using the maximum punishment for that closely related offense. However, if no listed offense is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(ii) requires looking to offenses in the United States Code and the custom of the service.

Applying R.C.M. 1003(c)(1)(B)(i), the military judge concluded that the appellant’s offense of sexual abuse of a child was closely related to the offense of indecent liberty with a child in violation of Article 120(j) (2006), for which the maximum authorized punishment includes confinement for 15 years. The defense, however, argued that the offense of indecent exposure in violation of Article 120(n) (2006), with it’s one-year maximum authorized term of confinement, was more closely related. Despite this objection, the appellant still pleaded guilty. Including the computed 15-year maximum, the appellant faced a total maximum authorized confinement of 22 years and one month, and the military judge sentenced him to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge.

In determining that indecent liberty with a child in violation of Article 120(j) (2006) was closely related to the appellant’s offense of sexual abuse of a child in violation of Article 120b(c) (2012), the military judge made reference to Executive Order 13643. That reference prompted the appellant’s ex post facto claim, as he asserted that the military judge wrongly applied the executive order issued after his commission of the offense. CAAF unanimously rejects this claim.

However, the majority finds that the military judge was wrong to use R.C.M. 1003(c)(1)(B)(i), but finds that application of R.C.M. 1003(c)(1)(B)(ii) reaches the same result. The dissent, however, highlights a significant weakness in the majority’s analysis.

Rejecting the appellant’s ex post facto claim, Chief Judge Erdmann concludes that the military judge did not rely on Executive Order 13643 to determine the maximum punishment for the appellant’s offense, and Judge Stucky describes the issues as “a red herring.” Diss. op. at 1.

But Chief Judge Erdmann and the majority make a surprising conclusion about the offenses from the 2006 version of Article 120 – he finds that they are no longer listed in Part IV of the Manual:

At the time of the trial, nether indecent liberties with a child nor indecent exposure were offenses listed in Part IV for the purpose of sentencing. When the offense of indecent liberties with a child was subsumed into Article 120b, in the 2012 amendments to the MCM, Congress explicitly repealed the offense. Once repealed, the former offense of indecent liberties with a child was removed from Part IV of the MCM and moved to Appendix 28. See MCM, Punitive Articles Applicable to Sexual Offenses Committed During the Period 1 October 2007 Through 27 June 2012, app. 28 at A28-2 (2012 ed.). Although the offense of indecent exposure was not repealed in 2012, it was moved to Article 120c, of the 2012 edition of the MCM. As a result of that move, it was not provided a maximum sentence until Exec. Order No. 13,643 was promulgated. See MCM pt. IV, para. 45.c Note (2012 ed.).

As neither indecent liberties with a child nor indecent exposure were offenses listed in Part IV for sentencing purposes at the time of the offense, the proper analysis for this case is found in R.C.M. 1003(c)(1)(B)(ii).

Slip op. at 10-11. The court’s analysis turns on the fact that the 2012 edition of the MCM printed the 2006 version of Article 120 in an appendix rather than in Part IV. That publishing decision, however, appears to be an anomaly, as Judge Stucky’s dissent notes that the President did not amend the MCM to make this change:

Part IV of the MCM is part of an executive order, promulgated by the President under his Article 36(a), UCMJ, authority to prescribe pretrial, trial, and post-trial procedures for courts-martial. 10 U.S.C. § 836 (2012). The majority has not pointed to any executive order removing indecent liberty with a child and indecent exposure from Part IV of the MCM, nor have I been able to find one. As both indecent liberty with a child and indecent exposure were still offenses under the UCMJ and the President had not withdrawn them from Part IV, the parties were correct to focus their arguments on R.C.M. 1003(c)(1)(B)(i).

Diss. op. at 4. A footnote adds that:

It appears that the Joint Service Committee on Military Justice amended Part IV of the 2012 MCM on its own to incorporate statutory amendments to the UCMJ enacted on December 31, 2011, eighteen days after the President had promulgated the last executive order included in the 2012 MCM. See MCM, Preface, at 1, ¶¶ 1, 4.

Diss. op at 4, n.5. The 2006 version of Article 120 was added to Part IV of the MCM by Executive Order 13447 of September 28, 2007, and, like Judge Stucky, I’m unaware of any Presidential action to remove the language (prior to Executive Order 13643, which set the maximums for the new version of Article 120). That the 2012 printed version presents the 2006 version of the statute in Appendix 28 rather than in the body of Part IV appears to be no more than a stylistic flourish by the publisher.

Yet having concluded that the military judge should have applied R.C.M. 1003(c)(1)(B)(ii) and considered offenses under the United States Code and the custom of the service, Chief Judge Erdmann and the majority conclude that it is a custom of the service to charge the appellant’s actions as an indecent liberty with a child:

Our research of cases with similar factual situations, from this court and the Courts of Criminal Appeals from 1951 to 2012, revealed that indecent acts or liberties with a child was charged in twenty-nine cases while indecent exposure was charged in nine cases. Taking into account the charging discretion of convening authorities, it appears that the “general usage of the service” has been to charge the offense of indecent liberties with a child under these factual circumstances.

Slip op. at 12. This is, ultimately, the same conclusion as reached by the military judge, and so CAAF affirms the findings and sentence, and the decision of the Air Force court.

The dissenters, however, would apply R.C.M. 1001(c)(1)(B)(i) to agree with the argument made by the defense at trial:

Comparing the elements of the offenses, it appears that the offense of sexual abuse of a child is more closely related to indecent exposure than to indecent liberty. At worst, it could be argued that the two are equally closely related to the offense of sexual abuse of a child, in which case the applicable maximum punishment is that of “the least severe of the listed offenses,” R.C.M. 1003(c)(1)(B)(1): a dishonorable discharge and confinement for one year.

Diss. op. at 7-8. Finding no issue with the plea itself, the dissenters would remand for reassessment of the sentence.

CAAF’s decision in this case reveals the importance of the Joint Service Committee’s work as publisher of the Manual for Courts-Martial. Unfortunately, this isn’t the first example of a publishing error in the 2012 MCM. The omission of Paragraph 16e in Part IV of the 2012 MCM (limiting the maximum punishment for Article 92) was improperly omitted from the 2012 MCM, as discussed here.

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
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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