CAAFlog » September 2011 Term » United States v. Ballan

On Friday, the Solicitor General submitted a waiver of the United States’ right to respond to the cert petition in Ballan v. United States, No. 11-1394.  The cert petition is available here.  We noted its filing here.  The QP is: “When a charge omits an element of the offense, must it be dismissed, or may such an error instead be excused after a court tests for prejudice?”

On Monday, the Supremes docketed (No. 11-1394) this cert petition seeking review of CAAF’s decision in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012).  Here’s the QP:  “When a charge omits an element of the offense, must it be dismissed, or may such an error instead be excused after a court tests for prejudice?”

Like most military appellate counsel, I’m working on several Ballan trailer briefs, and I was working on one particular Ballan trailer brief this morning when the thoughts leading to this post occurred to me.  As a result of working with the opinion in that context (a context which, admittedly, is an exercise in attempting to craft an argument for reversal of my client’s conviction — a context which I’m fully aware is likely to skew my perceptions and analysis), I’m struck by a question:  why doesn’t R.C.M. 807 compel the opposite outcome?

Ballan seems to hold that the specification at issue failed to state an offense.  R.C.M. 907(b) sets out two “[n]onwaivable grounds” for dismissal, one of which is failure to state an offense.  The rule provides:  “A charge or specification shall be dismissed at any stage of the proceedings if . . . . the specification fails to state an offense.”  To my simple way of thinking, that indicates that if at any stage of the proceedings, including on appeal, it is determined that a specification failed to state an offense, then it must be dismissed.

The Ballan majority addressed R.C.M. 907:  “While the rules state that a charge or specification that fails to state an offense should be dismissed, R.C.M. 907(b)(1), a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error.”  Ballan, slip op. at 14.  To me, it’s significant that R.C.M. 907 says that such a spec “shall be dismissed,” not “should be dismissed.”  In support of the proposition that a defective spec, if not challenged at trial, is tested for plain error, the Ballan majority cites a Supreme Court case and a Tenth Circuit case.  United States v. Cotton, 535 U.S. 625, 631-32 (2002); United States v. Sinks, 473 F.3d 1315, 1320-21 (10th Cir. 2007). But neither of those cases was governed by R.C.M. 907(b)(1).  Rather, they involved federal criminal proceedings governed by Fed. R. Crim. P. 12 and 34, the wording of which is sufficiently different from that of R.C.M. 907(b)(1) that it isn’t apparent to me why those cases should govern the resolution of this issue in a military context.  For example, when Fed. R. Crim. P. 34 was amended in 1966, the Rules Advisory Committee noted:  “The words ‘on motion of a defendant’ are added to make clear here, as in Rule 33, that the court may act only pursuant to a timely motion by the defendant.”  Contrast that concern for a timely motion with R.C.M. 907, in which the President declares that a challenge based on failure to state an offense is “[n]onwaivable” and shall result in dismissal “at any stage of the proceedings.”

Again, I’m fully aware that I’m looking at this issue through not merely defense goggles, but extra-warping defense goggles in the context of preparing a brief.  I can also see potential rationales for a court holding that what appears to me to be R.C.M. 907(b)(1)’s plain language won’t be enforced, including a potential conflict with Article 59(a).  Resolving such an issue would involve complex and fascinating considerations including the extent to which Chevron deference is appropriate when considering whether to displace the President’s interpretation of the UCMJ.  But for the moment, I’m left wondering why R.C.M. 907 didn’t compel a different outcome.

[Further disclosure:  before Ballan came out, I had argued in at least one brief that a plain error analysis isn't applicable in this context because of R.C.M. 907's "[n]onwaivable” and “at any stage of the proceedings” language — an argument that is crushed by Ballan.  Further further disclosure:  I have several Ballan-trailer cases pending before both CAAF and AFCCA.]

I set the bar pretty high in my preview of the oral argument at CAAF in United States v. Ballan, No. 11-0413/NA:

I’ve written, with great interest, about post-Fosler affirmations at the CCAs of Article 134 specifications lacking a terminal element (see, for example, The Future of Fosler). First it was the NMCCA in Leubecker. Then the ACCA joined in with Roberts. Next was the AFCCA with Martinez. Only the CGCCA has yet to rule that, post-Fosler, an accused can plead guilty to an Article 134 specification lacking a terminal element.

Tomorrow, CAAF will hear oral argument in a case that might change all of that. United States v. Ballan, No: 11-0413/NA, presents the following issue:

Although the crime of indecent acts with a child to which appellant pleaded guilty was not a lesser included offense of the charged crime of rape of a child and thus had not been formally referred to trial by court-martial by the convening authority, whether appellant waived such irregularity by pleading guilty under a pretrial agreement to indecent acts with a child in violation of Article 134, where neither the pretrial agreement nor appellant’s plea at arraignment expressly set forth either potential terminal element for an Article 134 clause 1 or 2 specification, but both elements were discussed and admitted during the providence inquiry.

While the facts of Ballan are a little different from Leubecker, Roberts, and Martinez, where the accused pleaded guilty to a charged, but faulty, specification, it might not matter in the end.

MM2 Ballan was charged with raping a child under Article 120, UCMJ,10 but pleaded guilty under a PTA to the crime of indecent acts with a child in violation of Article 134, UCMJ. The convening authority did not refer an indecent acts charge to the court-martial. Instead, the PTA MM2 Ballan pleaded guilty under simply provided that MM2 Ballan would plead “NOT GUILTY” to the specification under Article 120, but “GUILTY” to the lesser-included-offense (LIO) of indecent act with a child. Appellant’s Br. at 3

CAAF, in its opinion last week, easily cleared the bar. Judge Ryan writes for all but Chief Judge Baker, who concurs in the result but continues to oppose the court’s Fosler jurisprudence with all the tenacity expected of a Marine officer.

The opinion opens badly for the defense: “Consistent with our decision in United States v. Wilkins, 29 M.J. 421 (C.M.A 1990)…” Slip op. at 3. The appellate government shops dug up Wilkins after CAAF decided Fosler, and successfully used it to win affirmations at the CCAs in cases where the accused pleaded guilty to a defective Article 134 specification. The court’s affirmation of Wilkins here is a significant limitation on the reach of Fosler. This is wrong. I’m thinking about United States v. Watkins, 21 M.J. 208 (C.M.A., 1986), not United States v. Wilkins. However, CAAF does affirm Watkins in its opinion:

… the Court ‘view[s] [the] specification[] with maximum liberality, United States v. Bryant, 30 M.J. 72, 73 (C.M.A. 1990); see also United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986) …

Ballan, slip op. at 12.

Read more »

United States v. Ballan, __ M.J. __, No. 11-0413/NA (C.A.A.F. March 1, 2012).

I’ve written, with great interest, about post-Fosler affirmations at the CCAs of Article 134 specifications lacking a terminal element (see, for example, The Future of Fosler). First it was the N-MCCA in Leubecker. Then the ACCA joined in with Roberts. Next was the AFCCA with Martinez. Only the CGCCA has yet to rule that, post-Fosler, an accused can plead guilty to an Article 134 specification lacking a terminal element.

Tomorrow, CAAF will hear oral argument in a case that might change all of that. United States v. Ballan, No: 11-0413/NA, presents the following issue:

Although the crime of indecent acts with a child to which appellant pleaded guilty was not a lesser included offense of the charged crime of rape of a child and thus had not been formally referred to trial by court-martial by the convening authority, whether appellant waived such irregularity by pleading guilty under a pretrial agreement to indecent acts with a child in violation of Article 134, where neither the pretrial agreement nor appellant’s plea at arraignment expressly set forth either potential terminal element for an Article 134 clause 1 or 2 specification, but both elements were discussed and admitted during the providence inquiry.

Read more »

On Thursday, CAAF added another trailer to the Fosler Trailer Park.  United States v. Ballan, __ M.J. __, No. 11-0413/NA (C.A.A.F. June 2, 2011).  CAAF also granted a non-Fosler issue in the same case:

ALTHOUGH THE CRIME OF INDECENT ACTS WITH A CHILD TO WHICH APPELLANT PLEADED GUILTY WAS NOT A LESSER INCLUDED OFFENSE OF THE CHARGED CRIME OF RAPE OF A CHILD AND THUS HAD NOT BEEN FORMALLY REFERRED TO TRIAL BY COURT-MARTIAL BY THE CONVENING AUTHORITY, WHETHER APPELLANT WAIVED SUCH IRREGULARITY BY PLEADING GUILTY UNDER A PRETRIAL AGREEMENT TO INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134, WHERE NEITHER THE PRETRIAL AGREEMENT NOR APPELLANT’S PLEA AT ARRAIGNMENT EXPRESSLY SET FORTH EITHER POTENTIAL TERMINAL ELEMENT FOR AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION, BUT BOTH ELEMENTS WERE DISCUSSED AND ADMITTED DURING THE PROVIDENCE INQUIRY.

NMCCA’s unpublished opinion in the case is available here.

Also on Thursday, CAAF granted review of this issue:  “WHETHER THE MILITARY JUDGE ERRED, AFTER FINDING ALL THREE CHARGES AROSE OUT OF THE SAME TRANSACTION AND WERE PART OF THE SAME IMPULSE, BY MERGING THEM FOR SENTENCING RATHER THAN DISMISSING THEM.”  United States v. Campbell, __ M.J. __, No. 11-0403/AF (C.A.A.F. June 2, 2011).  AFCCA’s website appears to be unavailable at the moment.  I should be able to obtain a copy of AFCCA’s opinion in Campbell on Monday and post it then.