CAAFlog » September 2014 Term » United States v. Bennitt

CAAF decided the Army case of United States v. Bennitt, 74 M.J. 125, No. 12-0616/AR (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the Army CCA erred in approving Appellant’s sentence, because the CCA made a finding based on a theory not presented at trial. CAAF reverses the decision of the Army court and remands the case for further action.

Judge Ryan write for the court. She is joined by all but Chief Judge Baker, who dissents.

CAAF granted review of a single issue:

Whether the Army Court of Criminal Appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

This is CAAF’s second opinion in this case. Previously, in a 2013 decision (CAAFlog case page), CAAF reversed Appellant’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died in Appellant’s barracks room in 2009. Yet Appellant also pleaded guilty to four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, and CAAF remanded the case for reassessment of the sentence based on just those offenses. Despite the fact that Appellant was no longer convicted of manslaughter, the CCA affirmed the entire adjudged sentence (confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge) in two opinions:

The CCA explained that “[a]lthough appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for CourtsMartial [sic] 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 . . . .” Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013 WL 5588229, at *1.

On a motion for reconsideration in light of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again reassessed, and did not change, Appellant’s sentence. United States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App. Mar. 25, 2014) (unpublished). The CCA’s reasoning did change, however. The CCA concluded that evidence of LK’s death was admissible aggravation evidence because Appellant’s Article 112a, UCMJ, conviction of oxymorphone distribution on divers occasions on or about February 14, 2009, included distribution of the drug to LK. Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at *3.

Slip op. at 2-3 (marks in original). Yet Judge Ryan finds fault with the CCA’s revised reasoning, concluding that “the CCA erred as a matter of law in its second reassessment when it stated that Appellant was convicted of distribution of oxymorphone to LK as part of his Article 112a, UCMJ, conviction.” Slip op. at 4. This was error because:

The CCA’s finding was based on “a theory not presented to the trier of fact.”

Slip op. at 9.

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

United States v. Torres, No. 14-0222/AF (CAAFlog case page): Oral argument audio.

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

Additionally, audio of yesterday’s oral argument at the NMCCA in United States v. Oakley is available here. The issues are in this week’s TWIMJ.

CAAF will hear oral argument in the Army case of United States v. Bennitt, No. 12-0616/AR (CAAFlog case page), on Wednesday, December 10, 2014. This will be CAAF’s second review of Private Bennitt’s 2010 court-martial, where he was convicted contrary to his pleas of not guilty, 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). He was also convicted, in accordance with his pleas of guilty, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

On initial review in 2012 the Army CCA affirmed the findings and sentence. However, CAAF reversed. In an opinion authored by Judge Stucky, CAAF found that Bennitt’s distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died while in the Appellant’s barracks room in 2009, did not amount to an offense directly affecting the person sufficient to support a conviction of involuntary manslaughter in violation of Article 119(b)(2). United States v. Bennitt, 72 M.J. 266 (CAAFlog case page).

That left Private Bennitt convicted of four specifications each of wrongful use and distribution of a controlled substance – offenses he pleaded guilty to without the benefit of a pretrial agreement – and CAAF remanded the case to the Army CCA to reassess the sentence. But the Army CCA again affirmed the entire adjudged sentence. This action caught my attention, and I wrote about it in a 2013 post titled: Bennitt’s sentence remains the same. CAAF subsequently granted review of a single issue:

Whether the army court of criminal appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

The Army CCA based its action on its conclusion that:

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

United States v. Bennitt, No. 20100172, slip op. at 2 (A.Ct.Crim.App. Sep. 25, 2013). But Appellant’s brief to CAAF asserts that the death of LK was not a proper matter in aggravation because the manslaughter conviction was the only offense that involved her:

During the plea colloquy, PV2 Bennitt admitted to distributing oxymorphone to Privates (PVT) Swindle, Doherty, and Waldroop on February 14, 2009. (JA 51-57). Private Bennitt also asserted that he only distributed alprazolam once to PVT Doherty on February 14, 2009. (JA 58-60, 69-70). Private Bennitt never admitted to distributing oxymorphone or alprazolam to LK during the providence inquiry. (JA 51-60, 69-70).

App. Br. at 5. Because of this, Appellant asserts that any facts involving the death of LK are uncharged misconduct, and that such evidence is generally inadmissible and must be tested for under prejudice under M.R.E. 403. App. Br. at 14. But the Government feels differently, relying on the fact that there was a presentation of the case on the merits that went well beyond Appellant’s pleas of guilty and included significant evidence about his distribution of drugs to LK.

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CAAF granted review in two cases on Monday. The court also called upon Senior Judge Cox to sit in place of Judge Ohlson in Newton (Judge Ohlson recused himself from participation in that case – discussed here).

The first new grant is United States v. Bennitt, No. 12-0616/AR. This is the second trip to CAAF for this case. Last term the court reversed the appellant’s conviction for 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. United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page). CAAF then remanded the case to the Army CCA for a sentence reassessment, and the CCA affirmed the original sentence. The CCA did so because it was convinced that even without the manslaughter conviction the appellant would have been sentenced to no less than what he received. This prompted me to write a post titled: Bennitt’s sentence remains the same, in which I predicted that CAAF will tell us how the CCA can possibly be convinced of this fact.

And now CAAF will do that:

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.

Briefs will be filed under Rule 25.

The other new grant is in a case involving the ultimate offense doctrine:

No. 14-0619/AR. U.S. v. Aaron J. TWINAM. CCA 20120384. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF FAILURE TO OBEY AN ORDER OR REGULATION.

No briefs will be filed under Rule 25.

I’ve been following the revival of the ultimate offense doctrine since last October when I covered the Army CCA’s opinion in United States v. Phillips, No. 20120585 (A. Ct. Crim. App. Sep. 23, 2013) (unpub. op.), rev’d on recon., 73 M.J. 572 (A. Ct. Crim. App. Jan. 31, 2014) (en banc), and rev. granted, 73 M.J. 408 (C.A.A.F. Jun. 3, 2014) (CAAFlog case page).

Twinam is the third Phillips trailer granted by CAAF (the others are Nemeth and Amaya), definitively creating an ultimate offense doctrine trailer park. And yes, I do get excited about stuff like this.

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.