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.