CAAFlog » October 2017 Term » United States v. Hardy

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

United States v. Barker, No. 17-0551/AF (CAAFlog case page): Oral argument audio.

United States v. Hardy, No. 17-0553/AF (CAAFlog case page): Oral argument audio.

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.

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CAAF granted review in four cases yesterday, three of which were previously discussed on this blog.

The first is Barker, in which the Air Force CCA found that the military judge improperly admitted two unsworn written victim-impact statements during sentencing, but that the error was harmless. I discussed the CCA’s published decision in this post. CAAF granted review of two issues challenging the admission of a third statement and the finding of harmlessness regarding the two improperly-admitted statements:

No. 17-0551/AF. U.S. v. Thomas E. Barker. CCA 39086. 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 WHEN IT HELD PROPER FOUNDATION HAD BEEN LAID TO ADMIT EVIDENCE IN AGGRAVATION.

II.WHETHER THE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED A REVIEW OF THE PREJUDICE RESULTING FROM THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE IN AGGRAVATION.

Briefs will be filed under Rule 25.

The second is Hardy, in which the Air Force CCA found that a guilty plea waives any unreasonable multiplication of charges. I discussed the CCA’s published decision in this post. CAAF granted review of the CCA’s finding of waiver:

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. 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 issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLANT WAIVED, RATHER THAN FORFEITED, HIS CLAIM OF UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The third is Armstrong, which the Army CCA decided without an opinion (summarily):

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

Briefs will be filed under Rule 25.

The fourth is Kelly, in which the Army CCA sitting en banc split 6-4 to conclude that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56. I discussed the CCA’s opinion in this post (though I focused on a different issue). CAAF granted review of the CCA’s finding of no authority:

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER A COURT OF CRIMINAL APPEALS HAS THE AUTHORITY TO DISAPPROVE A MANDATORY MINIMUM PUNITIVE DISCHARGE.

Briefs will be filed under Rule 25.

Disclosure: I represent Kelly in my personal capacity.

With a published opinion in United States v. Hardy, 76 M.J. 732, No. 38937 (A.F. Ct. Crim. App. Jun. 22, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s guilty pleas waived his claim that his convictions of various offenses related to sexual contact with a minor are an unreasonable multiplication of charges.

“[T]he prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Unreasonable multiplication of charges is different from multiplicity, which “is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” Ibid.

In the Air Force case of United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a pretrial agreement provision to waive all waivable motions served as a waiver – rather than forfeiture – of any objection to both multiplicity and unreasonable multiplication of charges. Writing for the majority, Judge Stucky explained that:

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.  The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.

71 M.J. at 313 (marks and citations omitted). The minority concurred in the result (finding neither multiplicity nor unreasonable multiplication), because:

“Although Appellant expressly waived all waivable motions, the military judge delimited that waiver by cataloguing the specific motions and issues waived. This catalogue did not include multiplicity or an unreasonable multiplication of charges. . .”

67 M.J. at 314. This analysis included the observation that:

[A]n accused cannot silently waive appellate review of plain error.

Id.

Gladue strongly suggested – but did not explicitly state – that a guilty plea alone does not waive a claim to an unreasonable multiplication of charges (because if the plea alone was a waiver, then the pretrial agreement waiver provision interpreted by the court was mere surplusage). But in Hardy the Air Force court reaches the opposite conclusion.

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