Argument Preview: Reviewing an omitted instruction for plain error – or maybe not – in United States v. Easterly, No. 19-0398/AF
CAAF will hear oral argument in the certified Air Force case of United States v. Easterly, No. 19-0398/AF (CAAFlog case page), on Wednesday, December 4, 2019, at 9:30 a.m. The Air Force CCA ordered a sentence rehearing after finding plain error in the failure to instruct the members on the effect of a punitive discharge on a possible disability retirement, and the Judge Advocate General challenged that conclusion with a single issue:
Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.
Senior Airman (E-4) Easterly, was convicted of attempted premeditated murder and sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge. Prior to trial, Easterly was diagnosed with schizophrenia that was found to have been aggravated by his military service and warranted a medical retirement with a 100% disability rating. Those facts were presented during the sentencing phase of the court-martial, but the defense did not request an associated instruction to the members regarding retirement and the military judge did not give such an instruction. The prosecution, however, requested that the members be instructed to disregard any collateral consequences of the conviction, and the members were so instructed. Considering those facts, two out of three judges of a panel of the CCA found that it was plain error for the military judge to fail to give an instruction sua sponte, and the CCA set aside the sentence and authorized a sentence rehearing.
The Air Force Appellate Government Division challenges every aspect of that decision: It argues that there was no error because the record does not support the conclusion that Easterly would have been medically retired but for the punitive discharge; that any error is not plain because plain error under the circumstances requires that the defense actually request an instruction; that the defense had strategic reasons to not want an instruction; that giving an instruction in this case would have unduly interfered with the parties’ presentation of the case; and that any error is harmless because a punitive discharge was virtually certain.
Easterly responds by highlighting how the Government Division’s arguments obliterate the distinction between preserved and forfeited errors, are based on pure speculation of the motives of Easterly’s defense counsel, and misapply the prejudice prong of the plain error test.
An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver).
At the two extremes, an accused is entitled to relief from a preserved (non-harmless) error, and a waiver means that there is no error (regardless of harm). Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.
The practical distinction between preserved, forfeited, and waived errors in the military justice system used to be pretty clear, with military appellate courts acknowledging a wide range of forfeited errors by generally conducting plain error review of issues not explicitly raised or waived at trial. The military courts did that without clearly distinguishing between forfeited and waived issues, and they often used the term waive and forfeit interchangeably. They were in good company. In his concurring opinion in Freytag v. Commissioner, Justice Scalia observed that the Supreme Court also “so often used [the terms waive and forfeit] interchangeably that it may be too late to introduce precision.” 501 U.S. 868, 894 n.2 (1991). And more recently, the Court observed:
the terms waiver and forfeiture – though often used interchangeably by jurists and litigants – are not synonymous.
Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 17 n.1 ( 2017).
CAAF recognized the same cloudiness in military law, observing that “military courts [fail] to consistently distinguish between the terms waiver and forfeiture.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Yet there the similarities end, as the Rules for Courts-Martial also failed (prior to January 1, 2019) to distinguish between waiver and forfeiture, and in fact did not reference forfeiture at all (except as a verb reflecting the punishment of forfeiture of pay or allowances). As a result, while federal courts continued to apply traditional notions of waiver and forfeiture (but with greater precision in lexicon), the various military Government Divisions began to argue that the mere failure to object was a waiver that prohibited relief on appeal, and those arguments got traction. As a result, waiver mania was the #3 Military Justice Story of 2017. While it calmed a bit the following year, the Government Division’s brief Easterly suggests that the mania continues in a different form.
The Government Division focuses on CAAF’s decision in United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001). Boyd was a case involving an Air Force Captain with 15 years of service who requested an instruction on the effect an adjudged dismissal would have on his potential retirement after 20 years of service. The military judge refused to give the instruction, and CAAF found that refusal to be harmless because the defense was not focused on the possibility of Boyd successfully completing five more years of service. But CAAF also announced a prospective rule:
Consistent with our holdings in Sumrall, Greaves, Becker, and Luster, we will require military judges in all cases tried after the date of this opinion to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it. We expect that military judges will be liberal in granting requests for such an instruction. They may deny a request for such an instruction only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence.
Boyd, 55 M.J. at 221. Then, after having announced the prospective rule and finding harmlessness, CAAF briefly considered the possibility of Boyd retiring after less than 20 years due to disability. Observing that the members received no evidence of potential disability retirement, CAAF concluded that the failure to give a disability retirement instruction (that was not requested by the defense) “was no error at all, much less plain error.” 55 M.J. at 222.
In Easterly, the Government Division fixates on the wording of the prospective rule announced in Boyd while obfuscating its context. The Government Division asserts:
military judges are only required to give a retirement instruction when there is a sufficient factual predicate and a party requests it. United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (emphasis added).
Gov’t Div. Br. at 17 (emphasis in original). The Division later acknowledges that “the Boyd opinion is complicated by multiple retirement instructions and multiple standards of review,” Gov’t Div. Br. at 25, but it insists that “Boyd established only one thing: omitting a retirement instruction is reviewed for plain error,” Gov’t Div. Br. at 27. Lost entirely in the Government Division’s presentation is the fact that the prospective rule announced in Boyd was one for preserved error (because it involved a defense request for an instruction that was denied), and so of course a rule for a preserved error requires that the error actually be preserved. Moreover, CAAF’s opinion in Boyd used the term plain error only twice, and both times involved the disability retirement instruction that the defense did not request (and therefore forfeited). Nothing in the opinion changed the ordinary rules of forfeiture or somehow required that the instructional error be preserved for plain error (the penalty for forfeiture) to apply.
This seems to be a pivotal issue in the case, but Easterly’s brief largely relegates it to a footnote:
The government’s primary argument for why the military judge in did not err in this case is that SrA Easterly’s defense counsel did not request the instruction. (Appellant’s Brief at 20). This argument appears to conflate two distinct aspects of Boyd: (1) the “prospective rule requiring military judges to instruct on the effect of a punitive discharge on retirement benefits, if requested by the defense and supported by the evidence;” and (2) the Court’s holding that absent a request for the instruction, a military judge’s failure to give the instruction sua sponte would be reviewed for plain error. Denedo v. United States, 66 M.J. 114, 131 (C.A.A.F. 2008) (emphasis added) (discussing the Court’s holding in Boyd). See also Boyd, 55 M.J. at 222; United States v. Gilley, 56 M.J. 113, 129 (C.A.A.F. 2001). If, as the government suggests, an accused has to request the instruction in order for there to be error, there would be no plain error review at all. (See Appellant’s Brief at 25-26).
Appellee’s Br. at 19 n.2.
The Government Division further confuses the issue by arguing – without pointing to any evidence in the record – that Easterly’s defense team did not want the instruction at issue:
The defense team was not asleep at the switch. They, like the military judge, were aware of the FPEB and its implications. Easterly, 2019 CCA LEXIS 175, at *51-52. The defense team was not comatose when “the Government argued during findings that Appellant was concerned about his retirement pay and 100 percent disability compensation when he communicated a threat to kill any doctor who changed his diagnosis.” Id. at *51. It is reasonable to conclude that the trial defense team deliberately chose to avoid the retirement instruction, which is understandable under these circumstances. In fact, this issue was so unclear, Appellee did not even raise it on appeal. As such, the need to give the retirement instruction was not plain and obvious.
Gov’t Div. Br. at 35. That argument outlines either a waiver or ineffective assistance of counsel (or both), yet the Government Division uses neither term. Rather, it simply conjures up a deliberate decision out of convenience.
The Government Division also asks a host of rhetorical questions in an effort to undercut the possibility of Easterly ever receiving a disability retirement:
Is there any reason to assume Prosecution Exhibit 24 [a formal physical evaluation board report that recommended Easterly’s retirement with a 100% disability rating] is a rubber stamp for retirement approval? What is the process for determining whether Appellee is, in fact, allowed to be medically retired? Prosecution Exhibit 24 offers a “recommended disposition,” but who is the final disposition authority? Would that authority consider the informal recommended disposition (Prosecution Exhibit 23 [an informal physical evaluation board report that recommended discharge with a zero percent rating]) in making the final determination? Regardless of whether Appellee received a punitive discharge, would the final disposition authority consider Appellee’s court-martial conviction for attempted murder before making the final disposition? Appellee was charged with threatening to kill a doctor who interfered with hisFPEB—was there discussion about changing that diagnosis? Appellee did not present evidence that would answer these questions.
Gov’t Div. Br. at 24. Considering that the disability evaluation process is entirely a creature of Government policy and regulation, one imagines that CAAF will be unamused by the Government Division’s feigned ignorance.
The Government Division’s prejudice argument is its strongest. Observing that Easterly’s sentencing case focused on preserving his ability to receive medical care from the Department of Veterans Affairs rather than a disability retirement, the Government Division argues that the adjudged punitive discharge wasn’t even a close call:
If a punitive discharge was a close call, the members would have adjudged a bad conduct discharge, and not a dishonorable one. The members were not only persuaded that his benefits needed to be severed, they determined that the additional stigma of a dishonorable discharge was necessary given the gravity of Appellee’s offense.
Gov’t Div. Br. at 45-46. The Government Division also argues that:
Appellee built a sentencing case around his diagnosis and need for medical treatment, but without drawing attention to the fact that the Air Force would be paying him, an attempted murderer, a pension for the rest of his life.
Gov’t Div. Br. at 45. Regular military retirement (including disability retirement) is, of course, not a pension; retired members remain in the armed forces, subject to the UCMJ, and subject to recall (including members retired for disability, though they – and retirees over 60 years old – are in the last category for mobilization; see DoDI 1352.01). Those facts, however, only further support the Government Division’s harmlessness argument.
Easterly’s response is weak, focusing on “Easterly’s unsworn statement and defense counsel’s sentencing argument,” that “asked the members to consider that his retirement benefits would protect society and rehabilitate him by affording him the treatment and medication that his permanent, service-connected condition requires.” Appellee’s Br. at 26. Yet because the members were instructed that a punitive discharge would deprive Easterly of veterans benefits, the treatment and medication concerns seem to have been well-addressed without a disability retirement instruction.
The Government Division responds:
Appellee has not identified any evidence or arguments that he was not permitted to present to the members at trial, or how such evidence or arguments that were not made would have swayed the sentence. Not only was Appellee able to present his case to the members, the record does not support that the members were substantially swayed by the omission of a retirement instruction. Thus, Appellee has failed to establish prejudice to a substantial right. As discussed in the United States’ initial brief, a punitive discharge for attempted murder was not a “close call.”
Reply Br. at 12.