In United States v. Henegar, 75 M.J. 772 (N.M. Ct. Crim. App. Aug. 18, 2016) (link to slip op.), the NMCCA addresses the apparent tension between the Article 56 mandatory minimum punishment of dismissal or dishonorable discharge for a conviction of an attempt to commit certain sex offenses, and language in the Manual for Courts-Martial that states:

Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case . . . shall any mandatory minimum punishment provisions apply . . .

MCM, Part IV, ¶4.e.

Writing for the court, Senior Judge Palmer explains that the statute prevails and the mandatory minimum applies:

we cannot effect a Presidential directive which “clearly contradicts the express language of the Code,” even if it purports to “unambiguously give[] an accused greater rights than those conveyed by higher sources[.]” United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998). Indeed, the Rules for Courts-Martial acknowledge that a Congressional statute imposing a mandatory minimum must prevail, even if it precludes a court-martial from adjudging a lesser punishment to the benefit of the accused. See RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (“[E]xcept when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual”) (emphasis added).

Here, the appellant pleaded guilty to a specification of attempted sexual assault of a child, Article 120b(b), UCMJ, in violation of Article 80, UCMJ. Congress unambiguously provided in Article 56(b), UCMJ, that punishment adjudged for this offense “must include, at a minimum . . . [a] dishonorable discharge.” Article 56(b), UCMJ, is coherent within a statutory scheme (including Articles 18 and 56(a), UCMJ) that generally allows the President to set limits on punishment. But Congress’s specific mandatory minimum punishment statute prevails over statutes allowing the President to generally limit minimum punishment. We find the President’s statement in MCM, Part IV, ¶4.e, that no “mandatory minimum punishment provisions apply” to Article 80, UCMJ, clearly contradicts Article 56(b), UCMJ, for attempted sexual assault of a child (among other offenses). Thus, we conclude the mandatory dishonorable discharge term, as set forth by Congress, applies to the appellant.

Slip op. at 5-6 (marks in original).

20 Responses to “The NMCCA finds that mandatory minimums apply to attempted sex offenses”

  1. Brian Bouffard says:

    [W]e cannot effect a Presidential directive which “clearly contradicts the express language of the Code[…]

    Really?  Don’t you do PRECISELY THAT to the government’s benefit when you “effect Presidential directives” that “clearly contradict the express language of” Articles 31(b) and 46?  Because the phrase “any person subject to the Code,” for example, is utterly unambiguous.  Even the most tortured reading of that phrase does not justify our current legal 31(b) reality – ALL of which is entirely due to Executive Branch action and its pocket “judicial branch’s” sophistry.  And “moral and intellectual cowardice” may be inflammatory, but the shoe fits.
    So now we have this patently and self-servingly false language in the block quote above.  Is there any logical reason for this “reasoning” by NMCCA other than a barely-concealed desire to stack the deck consistently in favor of only one side?  NMCCA’s willful intellectual blindness here borders on autism.
    Somebody point out where I’ve missed the boat here.

  2. Zachary D Spilman says:

    The boat you’ve missed, Brian Bouffard, is 62 years of precedent:

    Although Article 31(b), UCMJ, seems straightforward, “were these textual predicates applied literally, Article 31(b) would potentially have a comprehensive and unintended reach into all aspects of military life and mission.”

    United States v. Jones, 73 M.J. 357, 361 (C.A.A.F. 2014) (CAAFlog case page) (quoting United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006) (discussing United States v. Gibson, 3 C.M.A. 746, 14 C.M.R. 164 (1954))) (emphasis added).

    Take your complaint to Congress.

  3. k fischer says:

    Moreover, for the facts of this particular case, look at Footnote 7 showing exceptions to a mandatory minimum iaw 10 U.S.C. 860, which permits a CA to commute a sentence from a DD to a BCD pursuant to the terms of a pretrial agreement. 
    In this case, it appears that the Convening Authority permitted in accordance to the pretrial agreement to the punitive discharge as adjudged.  So, it seems that Haregan negotiated to allow the military judge to choose and adjudge either a BCD or DD, and the MJ adjudged a BCD, therefore, the Convening Authority was bound to limit approval of a BCD, i.e. the adjudged sentence.  If the quantum did not address a punitive discharge, then I think I think the NMCCA’s opinion would be better supported.  But, in this case, it appears that the Convening Authority permitted the MJ to adjudge a sentence, rather than be bound by mandatory minimum provisions, and if the MJ adjudged a BCD, then the CA was bound to approve the BCD according to the pretrial agreement.
    Although the CINC is also a convening authority or “other person” who may commute a sentence and approve a BCD.  So, I guess the CINC is permitted to commute a sentence and approve a BCD pursuant to a pretrial agreement under 860, but cannot make a rule that prohibits mandatory minimums being applied to Article 80 offenses under the R.C.M.

  4. k fischer says:

    Wait a second.  I re-read the opinion because I thought it strange that the Accused would want the original sentence of 4 years confinement and a BCD instead of 2 years and a DD.  So, the Accused re-negotiated the deal to a 24 month confinement cap because a BCD could not be adjudged, the MJ gave him the opportunity to withdraw from that deal at the 39(a) to resentence him, and he insisted on going through with the new deal that resulted in a DD and 24 months confinement instead of 48 months and a BCD.
    If he had held out for the BCD, then I think that the NMCCA would have gotten it wrong.  But, under these circumstances I think they got it right.

  5. Zachary D Spilman says:

    The mandatory minimum provision (Article 56(b)) states only that the punishment must be adjudged. It has nothing to do with the power of a convening authority (or subsequent clemency or sentence-appropriateness reviews) to reduce the adjudged punishment. 

    The new Article 60(c) limits the convening authority’s power to reduce a sentence; a totally separate issue. 

  6. (Former)ArmyTC says:

    k fischer, the issue is that the convening authority would need to expressly agree to “commute the mandatory dishonorable discharge to a bad conduct discharge” in the quantum, because the MJ could not adjudge a BCD under Article 56. Hence why new sentencing was needed.
    As for presidential intent in limiting mandatory minimums for attempt offenses, that EO was signed over 20 years before the instant case. Congress was aware of that limitation in the RCM when it amended Article 56, noting it’s intent to override the rule with the statute. I think the court’s language of “effect[ing] a presidential directive” is inartful. The directive didn’t “contradict the language of the statute” rather the statute countermands the directive.

  7. k fischer says:

    Hmmmm….I see your point.  And, if the CA was advised that the only sentence that could lawfully be adjudged is a DD, then the “punitive discharge as adjudged” would mean that there would be no commuting of the sentence. 
    So, I think it’s high time to amend the MCM to reflect the changes to Articles 56 and 60.

  8. Patient Optimism says:

    Well, it only took the President four years to amend the MCM and finally give us a Part IV to Article 120.  Any bets for Articles 56 and 60?

  9. Brian Bouffard says:

    Zach, of course I am aware of long-standing precedent – it is precisely the sophistry I’m referring to.  Congress is capable of writing a statute (or amending one) to avoid unintended consequences.  In Article 31(b), they have done so.  How many times has Congress revisited Article 31(b) in light of this precedent, which assumes there are “unintended consequences” flowing from a very clearly-written text?  None, apparently.
    My complaint is with an Executive Branch that has a quasi-judicial arm, both of which decided they’d interpret properly-enacted legislation in a way contrary to what it clearly says.  That’s an arrogation of power that I’d hope you would decry.

  10. Hmmm says:

    So, as I understand it, you believe that Article 31 should be read literally, and not apply to NCIS agents of other members of military law enforcement that are not “subject to the code?”  

  11. Brian Bouffard says:

    So, as I understand it, you believe that Article 31 should be read literally, and not apply to NCIS agents of other members of military law enforcement that are not “subject to the code?” 

    Because Article 31(b) doesn’t say “No person subject to the code may [interrogate without rights warnings], but any person NOT subject to the code may freely do so without rights warnings.”  There are all kinds of good reasons to limit NCIS agents as law enforcement officers, whether that’s part of 31(b), the Miranda decision, or other lawful Presidential action – that is, actions that do not conflict with a statute.
    Separation of powers is a good thing, and I seriously hope we’re not debating that here.  Our problem is a “judiciary” that is under the thumb of the Executive Branch.  Creating a framework in which military judges are Article III judges, with appropriate protections for promotion, etc. might be the right way to go.  I don’t know how you’d do it, though, and avoid the “politicians in uniform” problem, assuming military judges would retain their commissions and rotate back into a regular JA billet.

  12. Hmmm says:

    Still confused. Article 31 should apply to people bc there are “all kinds of reasons” why it should?  So you’re interpreting it’s purpose?  Are you really saying undercover agents need to read rights?  Come on now. 

  13. Matt says:

    I agree with Brian on this one.  The courts should not radically depart from the clear and obvious text of a statute.  The answer is that yes, under the way the statute is written, it should apply to even undercover agents.  The solution is that congress should fix it and add appropriate exemptions, not the courts.

  14. DCGoneGalt says:

    Matt:  I am with you, this is a case of reading comprehension for the courts.  And a legislative remedy for a fix if the words of the statute did not reflect their “intent”.  Then again, I still maintain it was simple reading comprehension on the matter of using an object to commit a sexual contact, so . . .

  15. stewie says:

    Except Matt I don’t see how exempting out undercover agents amounts to a “radical departure.”

  16. Matt says:

    Stewie, does the case law really only exempt undercover agents?  I could have sworn it was way more expansive, covering say, even military police if they are just asking questions to satisfy their own curiosity and not “investigating.”  If the court had only exempted undercover agents, I don’t think there would be too many complaints.  However, the courts have exempted almost everybody, relying on the purpose of the questioning rather than their status as a person subject to the code.  This is a radical departure from the text.  My point is that it is not the court’s job to fix a statute that was inadvertently too broad.  They should apply the unambiguous text as written and let congress fix it if congress thinks it goes too far.

  17. stewie says:

    Well we can argue about the exact proper scope, but I was simply commenting on the fact that one can think it not apply to every single person, and not “radically depart” from the language in the statute.  I would for example disagree with the interpretation on MPs asking “out of curiosity” due to their role, those cases I’m aware of and I think they go too far.
    I think the complaint raised in this thread is that they shouldn’t exempt ANYONE. I don’t think anyone including I will disagree that certain exemptions/cases are wrongly decided or go too far. 
    And court’s fix statutes all of the time. In fact a std rule of interpretation is if you can save a law by excising out an unconstitutional sliver or interpretation of it, that’s mighty fine. That even happens in “real courts.”

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

    The outcome of this case is wrong for 2 reasons:
    1.  U.S. v. Mitchell, 58 M.J. 446 (CAAF 2003)–a DD is more severe than a BCD, which renders the second sentence “more severe” than the original sentence, even though the adjudged (and approved) confinement in the second sentence was less than in the original sentence (6 years v. 10 years).  The ACCA affirmed the second sentence, with the rationale that the second sentence, on the whole, was not more severe than the original sentence (same rationale NMCCA seems to use).  CAAF held this rationale was wrong, noting that confinement was temporary, but the stigma of a punitive discharge was forever.  As I recall from watching the oral argument in Mitchell, CAAF asked what’s the difference?  At that time, the only difference noted was a Soldier with a BCD could still qualify for a VA farm loan, but a Soldier with a DD would not.
    Mitchell applied in the context of a sentencing rehearing, and I don’t think Henegar counts as a “rehearing” under Article 63, BUT consider
    2.  U.S. v. Perron, 58 M.J. 78 (CAAF 2003)–where there is a mutual misunderstanding in the PTA, the guilty plea is improvident.  In Henegar’s case, there is a mutual misunderstanding whether the CA could approve a BCD instead of a DD.  Congress allows CAs to reduce a DD to a BCD in guilty plea cases.  So even though the MJ was required to adjudge a DD, under the original PTA, the CA was required to reduce the DD to a BCD.  That everyone told Henegar that he had to get a DD, and that the CA was told he can’t approve a BCD regardless of the original PTA, were errors as a matter of law.  Therefore, this was not a “voluntary renegotiation,” the guilty plea was improvident, and the remedy is to either affirm only a sentence of 2 years’ confinement, reprimand, reduction to E-3, and a BCD (similar to the outcome in Mitchell), or set aside everything and send back for a rehearing, in which case Article 63 does apply, as does Mitchell.

  19. Zachary D Spilman says:

    I have to disagree with you, Tami a/k/a Princess Leia, for two reasons:

    First, as you note, the post-trial hearing where a new sentenced was adjudged was not a rehearing. It was a proceeding in revision. See R.C.M. 1102. See also R.C.M. 1102(c)(3) (“post-trial session may not be directed . . . for increasing the severity of the sentence unless the sentence prescribed for the offense is mandatory.” (emphasis added)).

    Second, I see nothing in the opinion that supports your statement that “under the original PTA, the CA was required to reduce the DD to a BCD.” Rather, it seems that the appellant and the CA both believed that the military judge could adjudge a BCD, and the confinement cap was negotiated accordingly. But then they realized their error and they renegotiated the PTA to reduce the maximum confinement:

    Prior to [the post-trial] session, the appellant and the convening authority renegotiated the pretrial agreement’s terms to include greater confinement protections and an acknowledgement that the appellant’s attempted sexual assault of a child conviction “require[d] the sentencing authority to adjudge a dishonorable discharge.” Although the military judge offered the appellant an opportunity to withdraw from the pretrial agreement, the appellant insisted on continuing with the agreement and his guilty pleas. So without objection, the military judge re-sentenced the appellant to a dishonorable discharge, but only 24 months of confinement. 

    Slip op. at 2 (emphases added). Furthermore, nothing in this language suggests any confusion over the CA’s ability to reduce the DD to a BCD. Rather, it indicates that the defense leveraged the mandatory DD to obtain greater confinement protection (and less adjudged confinement), and that there was no misunderstanding whatsoever. 

    See also United States v. Altier, 71 M.J. 427 (C.A.A.F. 2012) (CAAFlog case page).

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

    Zach, you’re correct.  I read off of k fischer’s comment about the original PTA included the CA approving a BCD, and then thought that the SJA advised the CA he couldn’t reduce the DD to a BCD during renegotiation of the PTA.
    I wonder if this will now raise another issue though, i.e. “I thought I renegotiated for a less severe sentence, but in reality I got a more severe sentence, according to U.S. v. Mitchell.  Had I known this, I would have insisted on the CA approving only a BCD in the PTA, even if it would have resulted in 36 months confinement instead of 24 months.  Therefore my plea is improvident.” 
    Maybe the MJ addressed this on the record and specifically told Henegar that even with less confinement, a sentence including a DD will be “more severe” than the original sentence.  If that’s the case, then I don’t see CAAF granting review.  But if everyone operated under the impression that less confinement with a DD was “less severe” than the original sentence, then I think it’s error as a matter of law and I think CAAF will be willing to grant review to revisit Mitchell.  Under Mitchell, the accused gets the benefit of each part of the sentence that is less severe, and in Henegar’s case, as in Mitchell, CAAF can do an “apples to apples” comparison.  And since Henegar pled guilty, he could have been eligible for BCD approval.
    I see Altier and Mitchell being consistent, in that a punitive discharge is more severe than confinement, because the discharge is a permanent stigma, while confinement is only temporary.  Especially only 30 days and 45 days restriction w/ hard labor, definitely not “more severe” than a BCD.  Back in the days when a CA could commute a sentence, the CA could commute a punitive discharge into confinement, I believe up to a year of confinement.