CAAFlog » September 2012 Term » United States v. Bennitt

Last term, in United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (C.A.A.F. 2013) (opinion) (CAAFlog case page), CAAF reversed Private Bennitt’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the appellant’s barracks room in 2009. The appellant was tried on both theories of involuntary manslaughter: by culpable negligence (Art. 119(b)(1)) and involving an offense directly affecting the person (Art. 119(b)(2)) (by aiding and abetting his girlfriend’s wrongful use of drugs). He was acquitted of the culpable negligence theory and convicted of the directly affecting the person theory, but CAAF determined that the “appellant’s conduct does not constitute physical assistance such that it is an offense directly affecting the person.” Slip op. at 15-16.

The appellant was also convicted in accordance with his pleas of guilty, by a general court-martial composed of a military judge alone, of four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, UCMJ. For these eight drug convictions, plus the manslaughter conviction, the appellant was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

After CAAF reversed the manslaughter conviction, it remanded the case to the Army CCA for either reconsideration of the sentence or remand to the convening authority for a sentencing rehearing. What should happen next is the issue CAAF is considering this term in United States v. Winckelmann, No. 11-0280/AR (Winckelmann IV) (CAAFlog case page). But four months ago, in my opinion analysis of CAAF’s decision in Bennitt, I wrote:

This Appellant is still convicted of the four specifications of use and four specifications of distribution of controlled substances, but he is no longer convicted of causing the death of [LK]. CAAF remands the case for either a sentence reassessment or a sentence rehearing which will undoubtedly result in a significantly reduced term of confinement. The Appellant was sentenced in January 2010 to 70 months of confinement (less a year of confinement credit), meaning he is likely now near or past his release date (considering credits earned while in confinement), so besides receiving back pay for the time he should not have been confined, the Appellant’s victory is limited.

Limited indeed, it turns out. In a summary disposition, the Army CCA affirms the full sentence as adjudged and approved by the convening authority:

Although appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for Courts-Martial 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence and it would have therefore been proper for the government to offer the following evidence: that appellant crushed an oxymorphone pill for L K and her friend TY; divided the contents for LK and TY who both then ingested the drug; and that pursuant to a toxicologist’s trial testimony, although a combination of drugs could account for LK’s death, “within a reasonable degree of scientific certainty” the oxymorphone was the “much bigger player” in LK’s death. . . .

Among other matters, we took into account appellant’s length of service and his service record. We also considered the serious nature of appellant’s remaining convictions. These offenses, including multiple drug distribution offenses that involved fellow soldiers and were committed on an Army installation, carry a maximum punishment that included seventy-two years of confinement. In addition, the dismissed offense merely reduced the maximum period of confinement from eighty-two years of confinement to seventy-two years. Based on the foregoing, we are convinced that appellant would have received a sentence on the remaining convictions of no less than that approved by the convening authority.

United States v. Bennitt, No. 20100172, slip op. at 2 (A.Ct.Crim.App. Sep. 25, 2013) (unpub. per curiam op.) (emphasis added) (slip op. here).

CAAF will tell us how the CCA can possibly be convinced of this fact in its decision this term in Winckelmann. But notably, the CCA doesn’t seem to give the appellant any credit for the fact that of his remaining eight convictions, he pleaded guilty to all of them without the benefit of a pretrial agreement.

CAAF decided United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (CAAFlog case page) (link to slip op.), on June 3, 2013, finding that the Appellant’s conviction for involuntary manslaughter in violation of Article 119(b)(2) is legally insufficient because the Appellant’s conduct was not an offense directly affecting the person as envisioned by Congress or as determined by precedent, reversing the ACCA, and setting aside the findings in part and the sentence.

Judge Stucky writes for the court, joined by Judges Erdmann and Ryan, and Senior Judge Cox. Chief Judge Baker dissents in a separate opinion in which he explains that he would affirm the ACCA and the conviction.

The Appellant was convicted, contrary to his pleas by a general court-martial composed of a military judge alone, of involuntary manslaughter by aiding and abetting in violation of Article 119(b)(2), UCMJ. He was acquitted of involuntary manslaughter by culpable negligence under Article 119(b)(1), UCMJ. He was also convicted, in accordance with his pleas, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a, UCMJ. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

The facts of the case involved the Appellant’s use and distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the Appellant’s barracks room in 2009. The girlfriend [LK], and her friend [TY], had asked the Appellant for the drugs, and he had “crushed the pill on the nightstand for them, and divided it with a card from his wallet. The girls then snorted the crushed pill using a dollar bill.” Slip op. at 4. LK was later found unresponsive, and then died, and TY was hospitalized for a drug overdose.

Article 119(b), UCMJ, provides:

(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being —

(1) by culpable negligence; or
(2) while perpetrating or attempting to perpetrate an offense, other than those named in [Article 118(4)], directly affecting the person;

is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.

The Appellant was charged under both theories (the culpable negligence being providing the pill and snorting device to a young person with a propensity to take drugs; the offense directly affecting the person being aiding and abetting wrongful use of drugs), but was acquitted of the culpable negligence theory and convicted of (what I consider) the more creative charge. CAAF reviewed two issues. The first questioned whether the Appellant’s distribution of drugs to the deceased was an offense directly affecting the person. The second (unreached by the majority) questioned whether the deceased’s use of drugs is an “offense” to support a conviction via aiding and abetting, as the deceased was a civilian not subject to the UCMJ’s prohibition on drug use.

Read more »

CAAF has decided United States v. Bennit, in his favor on the granted issue.

Judge Stucky writes for the court, with a written dissent by Chief Judge Baker.

Appellant was convicted of involuntary manslaughter while perpetrating an offense directly affecting the person of LK by aiding or abetting her wrongful use of a controlled substance.  Article 119(b)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919(b)(2) (2006). We granted review to determine whether Appellant’s conviction is legally insufficient because Appellant’s distribution of the controlled substance was not an “offense . . . directly affecting the person.” Additionally, we specified a related legal sufficiency issue — whether a civilian’s use of a controlled substance is an “offense” under federal or state law sufficient to support a conviction for involuntary manslaughter via aiding and abetting the civilian’s wrongful use of drugs under Article 119(b)(2), UCMJ. We hold that Appellant’s conduct was not an offense directly affecting the person as envisioned by Congress, or as interpreted by this Court’s precedent. Therefore, Appellant’s conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally insufficient; we need not reach the specified issue.

Remanded for a new sentencing review.

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

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page)

Link to audio.

Granted Issue: Whether appellant’s conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally insufficient because (1) in accordance with United States v. Sargent, 18 M.J. 331 (C.M.A. 1982), appellant’s distribution of oxymorphone was not a crime directly affecting the person under Article 119(b)(2), and (2) even if so, Congress did not intend for Article 119(b)(2) to cover appellant’s misconduct.

Specified Issue: In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King. Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

United States v. Salyer, No. 13-0186/MC (CAAFlog case page)

Link to audio.

Issue: Under United States v. Lewis, a case is dismissed with prejudice when unlawful command influence results in the recusal of a military judge. Here, the military judge recused himself because he found that the government’s actions made it impossible for him to remain on the case. The government complained to his supervisor about a ruling, accessed his service record without permission and, with this information, moved for his recusal. Should this case be dismissed with prejudice?

United States v. Squire, No. 13-0061/AR (CAAFlog case page)

Link to audio.

Issue: Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

United States v. Wilson, No. 13-0096/AR (CAAFlog case page)

Link to audio.

Issue: Whether appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the government failed to act with reasonable diligence in bringing him to trial.

CAAF granted review of three cases today — two Army and one Marine Corps.

In United States v. Jasper, No. 13-0013/AR, CAAF granted review of four issues — including an issue (Issue IV) that played a role in the Salyer case:  the cutoff age for child pornography under military law.

I.    WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST APPELLANT.

II.  WHETHER THE ARMY COURT ERRED WHEN IT CREATED A CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.

III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO NOTICE.

IV.  WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.

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

Here’s the granted issue in United States v. Dalton, No. 13-0124/MC:

IN UNITED STATES v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING THE EXISTENCE OF LESSER-INCLUDED OFFENSES.  MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE NEGLIGENCE.  UNDER JONES, IS INVOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY MANSLAUGHTER?

NMCCA’s opinion in the case is published at 71 M.J. 632.

Finally, in United States v. Bennitt, No. 12-0616/AR, CAAF specified an addititional issue:

In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King.  Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

We previously discussed the issue that CAAF granted in Bennitt on 19 September 2012.  An interesting aspect of Bennitt is that the specified issue uses a deep issue-like format. 

CAAF granted review of three issues today:

WHETHER APPELLANT’S CONVICTION FOR INVOLUNTARY MANSLAUGHTER UNDER ARTICLE 119(b)(2), UCMJ, IS LEGALLY INSUFFICIENT BECAUSE (1) IN ACCORDANCE WITH UNITED STATES v. SARGENT, 18 M.J. 331 (C.M.A. 1982), APPELLANT’S DISTRIBUTION OF OXYMORPHONE WAS NOT A CRIME DIRECTLY AFFECTING THE PERSON UNDER ARTICLE 119(b)(2), AND (2) EVEN IF SO, CONGRESS DID NOT INTEND FOR ARTICLE 119(b)(2) TO COVER APPELLANT’S MISCONDUCT.

United States v. Bennitt, __ M.J. __, No. 12-0616/AR (C.A.A.F. Sept. 19, 2012).  (ACCA’s decision in the case was a two-sentence summary affirmance with a footnote.)

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO SUPPRESS EVIDENCE OF CHILD PORNOGRAPHY DISCOVERED ON APPELLANT’S PERSONAL COMPUTER IN THE COURSE OF AN UNREASONABLE SEARCH CONDUCTED TO FIND CONTRABAND AFTER APPELLANT WAS WOUNDED IN IRAQ AND MEDICALLY EVACUATED TO THE UNITED STATES.

II. WHETHER THE ARMY COURT ERRED IN CREATING A NEW EXCEPTION TO THE FOURTH AMENDMENT WHEN IT HELD THAT THE GOVERNMENT’S SEARCH OF APPELLANT’S PERSONAL COMPUTER WAS REASONABLE BECAUSE THE GOVERNMENT WAS NOT “CERTAIN” OR “ABSOLUTELY CLEAR” THAT IT WOULD BE RETURNED TO THE WOUNDED-WARRIOR APPELLANT.

United States v. Kelly, __ M.J. __, No. 12-0524/AR (C.A.A.F. Sept 19, 2012).  (ACCA’s unpublished opinion in the case is available here.)

I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED THAT APPELLANT’S PARANOID SCHIZOPHRENIA AND SEVERE DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA ADOPTED AN OBJECTIVE STANDARD FOR “WRONGFULNESS.” WHAT IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?

II. UNDER THE FIFTH AMENDMENT, AN ACCUSED’S STATEMENT TO INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE STATEMENT?

United States v. Mott, __ M.J. __, No. 12-0604/NA (C.A.A.F. Sept. 19, 2012).  (NMCCA’s unpublished opinion in the case is available here.)