CAAF will hear oral argument in the Air Force case of United States v. Hardy, No. 17-0553/AF (CAAFlog case page), on Tuesday, February 27, 2018, after the argument in Barker. The court granted review to determine:

Whether the Air Force Court of Criminal Appeals erred by holding that Appellant waived, rather than forfeited, his claim of unreasonable multiplication of charges.

Unreasonable multiplication of charges (UMC) is a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach. The general rule is that “what is substantially one transaction should not be made the basis for an UMC against one person.” R.C.M. 307(c)(4).

Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the #3 Military Justice Story of 2017. The mere failure to raise an issue, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial).

Captain (O-3) Hardy pleaded guilty to numerous child sex offenses and was sentenced to confinement for 16 years and one day, total forfeitures, and a dismissal. Hardy’s defense counsel did not seek relief from any UMC at trial. A pretrial agreement limited Hardy’s confinement to 12 years. The pretrial agreement did not, however, include a relatively-common term to waive all waivable motions.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a waive all waivable motions provisions waived – rather than merely forfeited – any objection to both multiplicity and unreasonable multiplication of charges. Without such a provision in Hardy’s case, Hardy’s appellate defense counsel raised UMC for the first time on appeal. But the Air Force CCA found waiver nonetheless. In a published decision (analyzed here), a three-judge panel of the CCA concluded that:

where Appellant both failed to raise unreasonable multiplication of charges at trial and pleaded guilty unconditionally, we find he waived his claim of unreasonable multiplication of charges.

United States v. Hardy, 76 M.J. 732, 739 (A.F. Ct. Crim. App. 2017).

CAAF will determine if that’s right.

Hardy’s brief suggests that there are three categories of issues that may or may not be waived by a guilty plea:

The first category (“Category I”) encompasses those issues that are unquestionably waived by an unconditional guilty plea. Rule for Court-Martial (RCM) 910(j) states a guilty plea alone, “waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilty of the offense(s) to which the plea was made.” . . .

In the second category (“Category II”), there are issues that are never waived by an unconditional guilty plea. These include all defects related to jurisdiction or due process. . . .

The third category (“Category III”) applies to those defects that are waived only by intentional relinquishment or abandonment by the Appellant. This category is very fact-specific and encompasses either the explicit terms of the PTA with a “waive-all-waivable motions” provision, an express waiver of a particular issue, or an explicit discussion on the record between an appellant and the military judge regarding the issues that are being waived by entering into the plea. . . .

App. Br. at 7-8. Hardy then asserts that his case involves a Category III issue, and his brief needs look no further than CAAF’s recent decision in Ahern for the principle that:

whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

App. Br. at 10 (quoting United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page) (quoting United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)))).

Frankly, the notion that mere failure to object forfeited, rather than waived, any error is so axiomatic that it’s a mobius strip of citation.

Hardy’s brief does not, unfortunately, dive particularly deeply into the test for waiver; there’s little discussion of the nature of the right at stake, the degree of personal participation that might be necessary to waive the right, the minimal procedures required, or what information must be provided to secure a valid waiver. Rather, Hardy argues that “there was no express waiver of this issue,” and so it must be merely forfeited. App. Br. at 14. Then Hardy argues that the UMC is plain error and relief is required (even though CAAF did not grant review to decide that issue).

Yet while Hardy’s waiver argument is perhaps too narrow, the Air Force Government Appellate Division’s response is too broad. The Government Division argues that:

Rules for Courts-Martial (R.C.M.) 910(j) provides a “bright line rule” that an unconditional plea “which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made.” R.C.M. 910(j); United [sic] Schweitzer, 68 M.J. at 136. Notably, “[o]bjections that do not relate to factual issues of guilt are not covered by this bright-line rule, but the general principle still applies: An unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law.” Schweitzer, 68 M.J. at 136 (citations omitted).

Gov’t Div. Br. at 6. Besides the fact that this passage from Schweitzer was immediately followed by citation to cases where “[CAAF] has found on occasion that an unconditional guilty plea by itself does not waive an objection on appeal to a nonfactual issue,” 68 M.J. at 136 (citing cases) (emphasis added), the waived issue in Schweitzer involved a preexisting (and litigated) potential disqualification of the convening authority. The issue in Hardy, however, arose in sentencing; after Hardy pleaded guilty.

Is preemptive waiver a thing?

But the Government Division does make the persuasive point that Hardy affirmatively conceded the maximum possible punishment:

Appellant’s explicit agreement as to the maximum imposable punishment demonstrates that he understood the consequences of his guilty plea and that by continuing to plead guilty there would be no further reduction in the maximum imposable punishment. In other words, he intentionally relinquished his right for the trial court to sentence him based on a lesser maximum punishment.

Gov’t Div. Br. at 16. The clinical wording of this analysis aside, it is immediately followed by a dubious citation to Ahern, where the applicable Military Rule of Evidence renders the mere failure to object a waiver. See Ahern, 76 M.J. at 197 (“The right at issue in this case is contained within a Military Rule of Evidence . . . . But the rule underlying Appellant’s claim also provides that his failure to object . . . constitutes waiver . . .”). The rule at issue in Hardy (R.C.M. 307) contains no such waiver provision.

The Government Division’s brief ends with an application of the plain error standard, with the caveat that “the issue of whether there was an unreasonable multiplication of charges for sentencing falls outside the granted issue.” Gov’t Div. Br. at 19. Indeed it does. Furthermore, the CCA has the unique power to review for sentence appropriateness (guided by the proper application of forfeiture, if CAAF so holds).

Hardy’s reply brief focuses on what amounts to an affirmative consent argument:

Gladue provides the appropriate framework for determining waiver in this case. Here, there was no discussion of UMC on the record, no provision in the PTA that waived UMC, and there was no catch-all PTA term purporting to “waive all waivable motions.” Under the test described in Gladue, because the record is silent on this issue, Capt Hardy’s claim of UMC was forfeited, not waived.

Reply Br. at 6.

And, really, affirmative consent is what waiver is all about. An accused can waive all manner of rights by affirmative action: the right to remain silent, to a trial before members, to a trial at all, to defense counsel, etc. . .

The issue in Hardy – and other cases somewhat like it, including Burris where (disclosure) I am civilian defense counsel – is whether important rights are waived in courts-martial by mere silence.

Case Links:
AFCCA decision (76 M.J. 732)
Blog post: AFCCA finds guilty plea waives UMC
Appellant’s brief
Appellee’s (A.F. Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview

One Response to “Argument Preview: Whether a guilty plea waives any unreasonable multiplication of charges, in United States v. Hardy”

  1. Jean-Baptiste Clamence says:

    From Class v. United States, SCOTUS, Feb. 21, 2018, slip op. at 6:
    In more recent years, we have reaffirmed the Menna-Blackledge doctrine and refined its scope. In United States v. Broce, 488 U. S. 563 (1989), the defendants pleaded guilty to two separate indictments in a single proceeding which “on their face” described two separate bid-rigging conspiracies. Id., at 576. They later sought to challenge their convictions on double jeopardy grounds, arguing that they had only admitted to one conspiracy. Citing Blackledge and Menna, this Court repeated that a guilty plea does not bar a claim on appeal “where on the face of the record the court had no power to enter the conviction or impose the sentence.” 488 U. S., at 569. However, because the defendants could not “prove their claim by relying on those indictments and the existing record” and “without contradicting those indictments,” this Court held that their claims were “foreclosed by the admissions inherent in their guilty pleas.” Id., at 576.
    Doesn’t that mean the issue is not waived, and is to be determined by examination of the record?