CAAFlog » October 2016 Term » United States v. Price

CAAF decided the Air Force case of United States v. Price, 76 M.J. 136, No. 16-0611/AF (CAAFlog case page) (link to slip op.), on Friday, March 3, 2017. In a short opinion the court concludes that the military judge did not elicit too much information about the appellant’s misconduct during the plea inquiry. CAAF affirms the findings and sentence and the decision of the Air Force CCA

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

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.

In order to ensure that a plea of guilty at a court-martial is made voluntarily – and in light of the fact that military service involves all manner of coercion – a military judge must “conduct a detailed inquiry into the offenses charged, the accused’s understanding of the elements of each offense, the accused’s conduct, and the accused’s willingness to plead guilty.” Slip op. at 4 (quoting United States v. Perron, 58 M.J. 78, 82 (C.A.A.F. 2003)) (additional citation omitted) (emphasis in original).

When Price pleaded guilty, however, he offered only a “limited, generic recitation” of the factual basis for his plea (the things that made him guilty). Slip op. at 2. The military judge pressed for additional details over defense objection, eventually eliciting aggravating facts that were not perhaps totally necessary to a sufficient guilty plea.

But CAAF finds no error.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Price, No. 16-0611/AF (CAAFlog case page): Oral argument audio.

United States v. Shea, No. 16-0530/AF (CAAFlog case page): Oral argument audio.

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.

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CAAF granted review in three new cases last week:

No. 16-0484/AF. U.S. v. Christopher L. Oliver. CCA 38481. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following re-drafted issue:

WHETHER WRONGFUL SEXUAL CONTACT WAS A LESSER-INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The CCA did not address (seemingly because the appellant did not raise) the granted issue.

No. 16-0530/AF. U.S. v. Patrick A. Shea. CCA S32225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN, OVER APPELLANT’S TIMELY OBJECTION, THIS CASE WAS ASSIGNED TO A PANEL THAT DID NOT INCLUDE ALL THREE OF THE JUDGES FROM THE ORIGINAL DECISION.

II. WHETHER A REASONABLE OBSERVER WOULD QUESTION THE IMPARTIALITY OR INDEPENDENCE OF THE COURT OF CRIMINAL APPEALS AFTER WITNESSING THE REMOVAL OF JUDGE HECKER FROM THIS CASE ON REMAND FOLLOWING THE GOVERNMENT’S ALLEGATIONS THAT HER IMPARTIALITY HAS BEEN IMPAIRED BY THE DECISION OF THE JUDGE ADVOCATE GENERAL, WHO IS HIMSELF PART OF THE GOVERNMENT, TO ASSIGN HER TO PERFORM NON-JUDICIAL ADDITIONAL DUTIES WITHIN THE GOVERNMENT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinon is available here but does not address the granted issues.

No. 16-0611/AF. U.S. v. Richard K. Price, Jr. CCA S32330. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FORCING APPELLANT TO ADMIT TO MISCONDUCT GREATER THAN WAS NECESSARY FOR A PROVIDENT PLEA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The CCA analyzed and rejected the granted issue, concluding: “We find no abuse of discretion by the military judge in this case. The military judge was responsible for ensuring Appellant provided a proper factual basis for his plea. In this light, his questions were appropriate in determining whether Appellant’s use and distribution of various controlled substances on “divers” occasions was provident.” Slip op. at 3.