The Coast Guard CCA grants reconsideration three years later, and reverses a published opinion with an unpublished opinion (update: now a published decision)
Update: The opinion in Tevelein II now appears on the CGCCA’s website as a published decision.
Two weeks ago, in United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Jun. 29, 2016) (en banc op. on recon.) (Tevelein II) (link to slip op.) (mirror link), the Coast Guard CCA granted a Government request for reconsideration and reversed the original decision in the case that was issued by a three-judge panel of the court way back in 2013. See United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Sep. 6, 2013) (Tevelein I) (link to slip op.) (mirror link). The unpublished opinion on reconsideration also reverses a 2013 published decision of the court regarding the language required to properly charge a violation of Article 134 for conduct not enumerated as an offense in the Manual for Courts-Martial (a novel specification). See United States v. Hughey, 72 M.J. 809 (C.G. Ct. Crim. App. 2013) (discussed here).
The issue in the case is whether a novel Article 134 specification must include words of criminality (such as wrongfully), beyond the terminal elements themselves, in order to state an offense. Specifically, at a special court-martial in 2011, the appellant pleaded guilty to numerous offenses, one of which was using spice (the street name for a highly-toxic synthetic cannabinoid that is now – but was not at the time of the court-martial – a controlled substance) in violation of Article 134, with the following specification:
In that [appellant], U.S. Coast Guard, Coast Guard Cutter POLAR SEA (WAGB 11), on active duty, did, at or near Seattle, Washington, on divers occasions from on or about 23 February 2009 to on or about 21 October 2010, use Spice, which conduct was prejudicial to good order and discipline in the armed forces.
Tevelein II, slip op. at 2. More than two years after the guilty pleas a three-judge panel of the Coast Guard CCA reversed the spice conviction on the basis that the specification failed to state an offense because it failed to include words of criminality. Noting that at the time of the appellant’s use of spice the substance was neither criminalized nor the subject of a Coast Guard order prohibiting its use, the panel held that:
When an act, such as using Spice, is not in and of itself an offense, it is presumed to be lawful. See Brice, 38 C.M.R. at 138. Inclusion of the words “conduct prejudicial to good order and discipline” in the specification does not, without additional facts, make use of Spice criminal and punishable under Article 134.
Tevelein I, slip op. at 3. This holding applied the published decision of the Coast Guard CCA in United States v. Hughey, 72 M.J. 809 (C.G. Ct. Crim. App. Apr. 3, 2013) (discussed here), pet. denied, 73 M.J. 126 (C.A.A.F. 2013), that rejected a novel Article 134 specification because it did not allege words of criminality beyond the terminal elements themselves. In Hughey the CCA rejected the conclusion reached in United States v. Davis, 26 M.J. 445, 448 (C.M.A. 1988), that criminality may be alleged by the elements of Article 134 themselves, reasoning that:
we do not believe the Davis holding survives the recent cases of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012). In Fosler, where no “terminal element” was alleged in the Article 134 adultery specification at issue, the court held that neither the allegation of adulterous conduct nor the word “wrongfully” implied a terminal element. Fosler, 70 M.J. at 230-31. Surely the converse is also true: a terminal element does not imply the word “wrongfully.” Likewise, in Ballan, the court held that a terminal element was not necessarily implied “from nothing beyond allegations of the act or failure to act itself.” Ballan, 71 M.J. at 33. Similarly, criminality surely is not necessarily implied from a bare allegation of an act itself. After these decisions, inclusion of the language “which statements were prejudicial to good order and discipline in the armed forces” in our case does not obviate the need for separate language of criminality.
Hughey, 72 M.J. at 814.
But now, in Tevelein II, the CCA completely reverses itself:
Central to our earlier opinion was a conclusion that the words of the terminal element, i.e., that conduct was prejudicial to good order or discipline or service discrediting, were not words of criminality. Such a conclusion is not consonant with Davis, in which the court equated the terminal element language of Article 134 with words of criminality: “We can see no harm in alleging criminality in terms of the provision of Article 134 which made the conduct wrongful, rather than by using a general allegation that appellant’s activity was “wrongful” or “unlawful.” The Davis court distinguished Brice, by pointing out that the specification at issue in that case contained neither the terminal element, nor words of criminality. This court acknowledged the Davis analysis in United States v. Farence: “Stated differently, the words “prejudicial to the good order and discipline of the armed forces are, without more, “words importing criminality” sufficient to support a specification alleging acts that would not otherwise constitute a crime.” While acknowledging that military case law on this point “has been at times unclear,” we endorse the principle enunciated in Davis, and applied in Farence, that the words of the terminal element pled in an Article 134 specification constitute words of criminality sufficient to support a specification alleging acts that would not otherwise constitute a crime. In doing so, we overrule United States v. Hughey, 72 M.J. 809, 813, 814 (C.G.Ct.Crim.App. 2013) in which a panel of this court reached a contrary conclusion.
Tevelein II, slip op. at 4-5.
Significantly, Judge McGuire writes for the en banc court in Tevelein II, despite joining the panel’s contrary decision in Tevelein I and also joining the panel decision in Hughey.
However, the CCA’s en banc opinion is not unanimous.
Judge Bruce concurs on the basis that the specification is defective but the appellant (who pleaded guilty pursuant to a pretrial agreement) failed to show plain error. The defect, according to Judge Bruce, is in the failure of the terminal element to adequately consider the appellant’s mental state:
In the present case, the position that the terminal element sufficiently alleges words of criminality, goes against the precept that criminal liability does not turn solely on the results of the act without considering the accused’s mental state. . . . Even if it can be proved that an accused knew that his act would be prejudicial to good order and discipline, that would not make an innocent act or the exercise of a lawful right criminal. The requirement for a culpable mens rea applies to the first element, the act committed by the accused. In this case, it was the intent to abuse or wrongfully use “Spice” to the prejudice of good order and discipline that made the use a crime. Because at the time of trial “Spice” was not a controlled substance and it could be used lawfully (as incense at least), there was nothing inherently unlawful about the simple use of “Spice.”
Tevelein II, slip op. at 8-9. Judge Bruce’s concurring opinion draws support from CAAF’s recent opinion in United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page).
Judge Duignan – who also joined the panel decision in Tevelein I – dissents from the en banc decision in Tevelein II, excoriating the majority for reversing Hughey:
As we stated in this Court’s original opinion, “Conspicuously missing in this specification are any words of criminality, like ‘wrongfully,’ as was later used in the Stipulation of Fact submitted into evidence by the Government at trial.” Tevelein I, supra. Simply, Appellant’s use of Spice was not properly charged or noticed as being criminal conduct. No words of criminality were included in the specification. . . . This case should be resolved under Hughey. However, recognizing the Hughey decision as otherwise controlling precedent, the majority sua sponte overrules United States v. Hughey, 72 M.J. 809, 813, 814 (C.G.Ct.Crim.App. 2013). Hughey controls the outcome of this case, had the majority not reversed it without the benefit of notice and additional briefing. I would apply Hughey.
Tevelein II, slip op. at 10-11.
The CCA also granted slight relief for excessive appellate delay, reducing the adjudged reduction in rank by one paygrade. Judge Duignan, however, would disapprove the entire adjudged sentence (confinement for 90 days, reduction to E-1, and a bad-conduct discharge) due to “excessive, unreasonable, and unexcused” appellate delay. Tevelein II, slip op. at 13.