CAAF’s unanimous opinion in United States v. Hayes, No. 12-0090/AF, setting-aside the contested specification but otherwise affirming the findings and sentence, was predicted in my recap of the oral argument. However, the things unsaid in the Chief Judge’s opinion speak louder than the things said.

Hayes is an opinion about the sufficiency of proof, but the case is really about the limits – if there are to be any limits – of the reach of the UCMJ. Airman First Class Hayes was convicted, by officer members, of (among other things) dereliction of duty, “in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.” The purported source of this duty was a Nevada statute, and the custom of the Air Force to obey state law (there was no applicable Air Force regulation).

During the oral argument in this case the government’s counsel took the position that it is a custom of the service to obey all state laws, answering “yes” to Senior Judge Effron’s question, “That every service member has the duty to obey – a military duty to obey -  every state law, in every state that they happen to be in, no matter how brief the period in time?” (see a transcript of this exchange here). The court’s hostility to this position is evident in the argument audio, however it didn’t survive to the opinion. Instead, the court finds that:

There is no evidence in the record, and the Government points to none on appeal, to support the proposition that Appellant was bound by a military duty, stemming from a custom of the service and subject to sanction under Article 92(3), UCMJ, to obey Nevada’s alcohol law, or in the alternative, all state laws in Nevada — an obligation imposed on all citizens within the state.” Slip op. at 7.

A footnote alludes to the absurdity of the government’s position, but the court merely finds that the government didn’t prove its case, rather than finding that the government couldn’t prove its case because it was predicated on an absurd reading of the Code. The government’s position presumes that Congress intended dereliction of duty to encompass any violation of legal, regulatory, or administrative rules established by a separate sovereign. It’s a nonsensical and historically ignorant legal theory; like calling daydreaming an unauthorized absence. But CAAF’s treatment of the issue is more moderate, and leaves open the possibility of a successful dereliction prosecution using the government’s theory.

Assume, for example, that the appellant’s commander testified that he expected and instructed his personnel to obey all state laws. Would this specification then succeed? Say it were conceded that servicemembers do generally follow foreign (i.e., non-federal) rules, as a service-customary courtesy towards our hosts and out of good manners. Is then the failure to do so a dereliction? The opinion leaves these questions unanswered.

There are other disappointing aspects of this case, such as why the government even bothered to include this novel dereliction charge (the appellant was also convicted of one specification of wrongful use of marijuana, and six specifications of wrongfully distributing marijuana and cocaine), and why officer members – presumably college educated and capable of critical thought – accepted the government’s legal theory. But the court missed a golden opportunity to set a rational, reasonable outer limit to the reach of the UCMJ by rejecting the government’s legal theory and finding that this specification doesn’t state an offense. Hopefully the government will not see this as a license to give the court more such opportunities.

Case Links:
• AFCCA’s opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Oral argument audio
• Blog post: Argument recap
• CAAF’s opinion
• Blog post: Opinion analysis

CAAF today released an interesting opinion dealing with whether a violation of state law is automatically dereliction of duty.  No, holds CAAF in this unanimous opinion written by Chief Judge Baker.  United States v. Hayes, __ M.J. __, No. 12-0090 (C.A.A.F. May 1, 2012).

CAAF heard oral argument last week in the case of United States v. Hayes, No. 12-0090/AF (not to be confused with United States v. Hayes, No. 11-5003/NA, __ M.J. __ (CAAF, 2012)), which presents the following seemingly-innocuous question:

Whether the military judge erred in denying appellant’s motion to dismiss for failure to state an offense, where the specification omitted reference to a required element under state law for a finding of guilty for wrongful consumption of alcohol while under age 21.

But the case and the issues it raises are hardly innocuous.

The appellant was convicted in 2009, contrary to his pleas, by a general court-martial composed of officer members, of one specification of dereliction of duty by willfully failing to refrain from drinking alcohol while under the age of 21, and six specifications of wrongfully distributing controlled substances (marijuana and cocaine). He was also convicted of one specification, in accordance with his plea, of wrongfully using marijuana. He was sentenced to a bad-conduct discharge, confinement for two years, reduction to E-1, and total forfeitures. The convening authority approved the sentence as adjudged.

Here’s where it gets interesting. In the dereliction specification the government alleged that the appellant was derelict in the performance of his duties “in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.” During the Article 32 investigation, several witnesses testified that they saw the under-21 appellant consume alcohol at various locations in or near Las Vegas, Nevada. The government then argued that it intended to prove dereliction because Nevada Revised Statute 202.020 imposed a duty on the appellant to not consume alcohol, in a public place, if under 21, and that the Luxor Hotel in Las Vegas (where the appellant was seen drinking) was a public place. And prove it they did.

So the appellant was convicted of violating Article 92 for drinking when under 21, not because an order or rule prohibits it (apparently – and amazingly – the Air Force had no such order), but because it is, the government maintains, a custom of the service to follow state laws. However, the appellant argues that the specification is deficient because it does not actually allege that his consumption of alcohol while under the age of 21 was illegal under Nevada state law (note: I don’t see the verbatim text of the specification in the briefs; if someone has it, please post it in the comments). Update: The specification is in the CCA’s opinion and reads:

That [the appellant] who knew of his duties at or near Las Vegas, Nevada from on or about 1 June 2008, to on or about 30 September 2008, was derelict in the performance of those duties in that he willfully failed to refrain from drinking alcohol while under the age of 21, as it was his duty to do.

If this is starting to make your skin crawl, some history is in order. I give you the words of Chief Justice William H. Rehnquist:

Read more »

CAAF today granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE, WHERE THE SPECIFICATION OMITTED REFERENCE TO A REQUIRED ELEMENT UNDER STATE LAW FOR  A FINDING OF GUILTY FOR WRONGFUL CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21.

United States v. Hayes, __ M.J. __, No. 12-0090/AF (C.A.A.F. Nov. 30, 2011).  AFCCA’s unpublished decision in the case is available here.  United States v. Hayes, No. ACM 37588 (A.F. Ct. Crim. App. Aug. 15, 2011) (per curiam).