CAAFlog » September 2011 Term » United States v. Watson

Watson is a case about fraudulent enlistment, involving a Marine who pleaded guilty to multiple offenses, including fraudulent enlistment for concealing his pre-service in-patient treatment in a mental health facility. Particularly, the case is about the difference between two fraudulent enlistment rules: (1) the absolute-bar-to-enlistment rule, and (2) the initially-disqualified, need-a-waiver rule. The opinion explains the development of the different rules in the service courts:

As noted by the parties, the service appellate courts have reached different interpretations on this issue. In two cases from the 1950s, the Air Force and the Navy Boards of Review interpreted the offense of fraudulent enlistment to apply only to matters that would constitute an absolute bar to enlistment. In more recent years, however, both the Air Force and the Navy-Marine Corps Courts of Criminal Appeals have ruled that the statute applies to any information that would prevent enlistment, whether it concerns an absolute bar or a bar absent a waiver.

United States v. Watson, No. 11-0523/MC, Slip op. at 6 (C.A.A.F., 2012) (citations omitted). The appellant’s counsel, during oral argument in this case, argued that the appellant’s plea to fraudulent enlistment was improvident under either rule, but urged CAAF to adopt the absolute-bar-to-enlistment rule. Judge Erdmann, writing for the majority, rejects this position:

The plain language of Article 83 states that an accused must make a “knowingly false representation or deliberate concealment as to his qualifications.” Based on this language we agree with the Air Force Court of Criminal Appeals’ analysis when they addressed this issue in United States v. Nazario, 56 M.J. at 579:

We reject the appellant’s contention that the false representation must have concerned a matter that would absolutely bar him from the service. To accept the appellant’s view would be contrary to the plain language of the statute. An accused violates Article 83 by providing false information about a matter that would preclude him from entry without the service waiving the disqualification.

Watson, Slip op. at 8. The opinion also rejects the appellant’s other argument – that the plea was improvident because of an inconsistency – noting that to set-aside a guilty plea an appellate court must find “a substantial conflict between the plea and the accused’s statements or other evidence,” and not just the “mere possibility” of a conflict. Id., Slip op. at 10. This is reminiscent of the court’s opinion this term in United States v. Hayes, No. 11-5003/NA, discussing the need for further questioning when an accused, during a plea inquiry, raises a “possible defense,” vice “the mere possibility of a defense.”

Finally, the opinion addresses two Article 134 specifications lacking terminal elements, to which the accused pleaded guilty. First, citing United States v. Ballan, No. 11-0413/NA, the opinion emphasizes that while failure to state or necessarily imply a terminal element is error, “whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused,” and “that where the military judge described clauses 1 and 2 of Article 134 for each specification during the plea colloquy and where the record ‘conspicuously reflect[s] that the accused clearly understood the nature of the prohibited conduct as being in violation of clause 1 [or] clause 2, Article 134′ there was no prejudice to a substantial right.” Watson, Slip op. at 11 (citations omitted) (brackets in original). Then, noting the existence of a stipulation of fact in this case that included admission to the terminal element, and the plea colloquy that discussed the same, the court finds no prejudice. However, the court’s opinion in Watson does not include some (perhaps) key language found in the court’s opinion in Ballan: “in the context of a specification that was legally sufficient at the time of trial…” Ballan, Slip. op at 15. Despite this omission, the specifications in Watson were also legally sufficient at the time of trial (the sentence was adjudged on January 29, 2010).

The Chief Judge drafted a one-paragraph concurring opinion, in which he “adher[s] to [his] position in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting); United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012) (Baker, C.J., concurring in the result).”

Case links:
N-MCCA Opinion
Appellant’s brief
Appellee’s (government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
Blog post: Argument recap
CAAF opinion
Blog post: Opinion analysis

Link. Judge Erdmann writing for the court, with the Chief Judge filing a concurring opinion.

We granted review of this case to determine if an applicant who provides false information when enlisting in the military commits the offense of fraudulent enlistment under Article 83, UCMJ, only when the false information pertains to a  matter that would constitute an absolute bar to enlistment. We also granted review of an issue arising under United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), as to whether two specifications alleging offenses under Article 134 stated an offense where neither specification included the terminal elements. We hold that an applicant commits the offense of fraudulent enlistment when he or she provides false information about matters that would constitute either an absolute bar to enlistment or would constitute a bar to enlistment without a waiver from the service branch. We further hold that the specifications alleging the offenses of communicating a threat and indecent language under Article 134, which did not contain the terminal elements, constituted error, but this error was not prejudicial to Watson’s substantial rights. United States v. Ballan, 71 M.J. 28, 30 (C.A.A.F. 2012).

Analysis to follow.

During the oral argument at CAAF on Monday 12 December in United States v. Watson, No. 11-0523/MC, the court considered whether the appellant’s plea to fraudulent enlistment was provident.

The appellant’s counsel discussed two different fraudulent enlistment rules: (1) the absolute-bar-to-enlistment rule; and (2) the initially-disqualified, need-a-waiver rule. While he argued that the appellant’s plea was improvident under either rule, because he set up a matter inconsistent with the plea, he urged the court to adopt the absolute-bar-to-enlistment rule. This rule would require a prosecution for fraudulent enlistment involve a misrepresentation of a fact so disqualifying that, were it disclosed, the applicant would be absolutely-barred from enlistment. In the words of the appellant’s counsel at the beginning of the argument:

The very purpose of the statute is not simply to punish those who misrepresented themselves during the enlistment process, but rather to punish those who receive pay and allowances … from the government that they otherwise were not entitled to receive – would never have received under any circumstances. Argument audio at 2:00.

Read more »

CAAF will hear a second oral argument on Monday 12 December, in United States v. Watson, No. 11-0523/MC. The issues presented are:

I. Whether Appellant’s guilty plea to fraudulent enlistment was provident.

II. Whether an Article 134 clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s recent opinions in Medina, Miller, and Jones.

Note: The court ordered briefs to be filed on Issue I only.

The appellant was convicted, pursuant to his pleas and by a military judge sitting as a general court-martial, of fraudulent enlistment, unauthorized absence, communicating a threat, carrying a loaded firearm in a vehicle, possessing a deadly weapon with the intent to commit assault, communicating indecent language, and possession of child pornography, in violation of Articles 83, 86, and 134, UCMJ. He was sentenced to 42 months confinement, reduction to E-1, total forfeitures, and a BCD.

This case presents a fairly close question regarding the elements of an Article 83 fraudulent enlistment offense, but also ties into CAAF’s defective-pleas theme this term (e.g., United States v. Goodman; United States v. Hayes). The appellant challenges the providence of his plea to fraudulent enlistment based on the trial military judge’s alleged failure to clearly determine that, but for his misrepresentation, his enlistment would have been rejected.

Read more »