CAAF will hear oral argument in the Air Force case of United States v. Price, No. 16-0611/AF (CAAFlog case page), on Wednesday, January 11, 2017, at 9:30 a.m. The court granted review of an issue questioning whether the military judge asked too many questions during the appellant’s guilty plea inquiry:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

The pleas included admissions using cocaine, using alprazolam (Xanax), and distributing cocaine, all on divers occasions. Divers means more than one, and Price’s initial admissions during the plea were limited to two occasions. The military judge, however, pressed for additional admissions, eventually eliciting that Price used cocaine six times, that he used Xanax between one and three times per week for approximately five months, and that he distributed cocaine approximately six times. The military judge also elicited that Price sold (rather than merely distributed) cough syrup containing Codeine to another airman. Price’s defense counsel objected to the military judge’s questions as unnecessary and “forcing [Price] to give up evidence in aggravation.” App. Br. at 4 (quoting record).

The prosecution then used Price’s admissions to press for a harsher sentence, with trial counsel arguing:

What is important here is that he made the decision to use drugs but we know that it wasn’t just a one-time mistake or it was experimentation. We know that he used drugs, he used cocaine multiple times. In fact, he told us he used cocaine at least six times through August and October 2014, but that wasn’t it. He also used another drug. He used Xanax and he told you today, also, that he used that one to three times a week. This is a drug user we’re talking about.

App. Br. at 7 (quoting record). The Air Force CCA considered and rejected an assignment of error related to the military judge’s questions.

Price’s brief makes three arguments. First, it asserts that “the military judge erred by forcing Appellant to specify the exact number of times he used and distributed drugs, and by forcing Appellant to admit he sold codeine, all of which was evidence in aggravation and not required for a provident plea.” App. Br. at 9. Next, it argues that “by forcing Appellant to admit to the exact number of drug uses and distributions, and admit to selling codeine, the military judge also stepped outside his duty to be an impartial factfinder.” App. Br. at 10-11. Finally, it suggests that:

the military judge’s questions violated Appellant’s Fifth Amendment (U.S. CONST. amend. V) right to not be “compelled in any criminal case to be a witness against himself.” Although Appellant waived his right against self-incrimination in certain respects, this waiver did not extend to providing aggravating evidence without his consent.

App. Br. at 12.

The Government’s main reply is that this issue was waived:

Although he resisted or objected to the questions from the military judge now at issue, Appellant went on to answer them. (JA at 21, 28-29, 47, 60.)

Most importantly, Appellant continued with his guilty plea, and with the military judge as the sentencing authority, despite being advised that he could move to withdraw his plea at any time before sentence was announced. (JA at 78, 123.) As AFCCA observed, Appellant “could have either withdrawn his guilty plea or refused to answer the military judge’s questions deemed objectionable – a tactic that would certainly increase the likelihood that the military judge would not accept his plea.” (JA at 4.)

By answering the military judge’s questions and failing to withdraw from his guilty plea, Appellant “knowingly abandoned” his right to remain silent and chose the military judge as his sentencing authority. As such, Appellant waived any challenge relating to the propriety of the questions asked by the military judge during the providency inquiry. This Court should find this challenge waived, deny Appellant’s claim for relief, and affirm the findings and sentence in this case.

Gov’r Br. at 13. But the Government also asserts that Price’s approach would unreasonably tie the hands of military judges:

Appellant seeks to create a new legal confine to a military judge’s duty during the providency inquiry. He is asking this Court to hold that a military judge must elicit the factual predicate behind an accused’s pleas, but only those facts which are later to be determined barely necessary.

Gov’t Br. at 14. And the Government’s brief makes a strong argument for harmlessness:

If the military judge had not asked these questions, Appellant still snorted cocaine through a dollar bill “multiple times” in the months of June, July, October, and August. (JA at 19, 21.) He purchased and used Alprazolam “multiple times,” ultimately using it regularly enough to become addicted. (JA at 27-28, 95-96, 98.) It also must be recognized that Appellant presented his alleged addiction, and accompanying regular use of Alprazolam, as a mitigating circumstance. (JA at 100-01, 109, 111.) In other words, despite now protesting the military judge’s question concerning the frequency of his use, during trial Appellant provided his own information to the military judge that his use of Alprazolam was extensive.

Gov’t Br. at 31.

Price refreshes his Fifth Amendment argument in a reply brief:

Appellant also never waived his privilege against self-incrimination with respect to sentencing. In Estelle v. Smith, 451 U.S. 454, 462-463 (1981), the Supreme Court held that the Fifth Amendment applies equally in both findings and sentencing, and that the State may not compel an individual to testify against his will at sentencing. Relying on Smith, this Court’s precursor held that an accused who pled guilty waived his right against self-incrimination only as to findings, and that his rights against self-incrimination “remained extant in the presentencing phase of his trial.” United States v. Cowles, 16 M.J. 467, 468 (C.M.A. 1983) (internal quotations and footnotes omitted).

In this case, Appellant acknowledged that his admissions during findings “may be used” against him in sentencing (JA 14), but he only waived his privilege against self-incrimination “insofar as a plea of guilty [would] incriminate [him]” (JA 72, 122). He did not waive this privilege with respect to sentencing; in fact, he was reminded of his right to remain silent during presentencing (JA 79) and then exercised it by submitting an unsworn statement rather than testifying under oath (JA 98-102).

Reply. Br. at 3-4.

While the circumstances of this case – and particularly the relatively-light sentence – may not be egregious enough to win meaningful relief for Price, I think it likely that CAAF will seek to define an outer limit to a military judge’s plea inquiry.

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

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