CAAFlog » September 2014 Term » United States v. Newton

CAAF decided the Army case of United States v. Newton, 74 M.J. 69, No. 14-0415/AR (CAAFlog case page) (link to slip op.) on Wednesday, February 25, 2015. The court finds that Appellant was required to register as a sex offender under the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, and therefore it is unnecessary to consider the validity of a 2007 interim rule. CAAF affirms the decision of the Army CCA and Appellant’s convictions of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134.

Judge Ryan writes for a unanimous court. Of note, Judge Ohlson recused himself from participation in this case, and Senior Judge Cox participated in the place of Judge Ohlson.

Appellant joined the Army in 1998. In 1995 (prior to joining the Army) Appellant pleaded guilty in Missouri to statutory rape of a fourteen year-old girl, and he was informed of his obligation to register as a sex offender. Slip op. at 4. In late-2009, Appellant transferred to Fort Bliss, Texas, where he failed to register until mid-2010. For that failure, Appellant was convicted of failure to register as required by SORNA. But the issue before CAAF questioned whether Appellant even had a duty to register under SORNA:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

SORNA was enacted in 2006. The statute did not automatically apply to sex offenders convicted prior to its enactment, however Congress explicitly gave the Attorney General (AG) the authority to determine the retroactivity of the registration requirement. See 42 U.S.C. § 16913(d). A series of actions by the AG followed:

  • In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act (APA)).
  • In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
  • In late 2010 the AG published a final rule. This rule took effect after the end of Appellant’s period of non-registration.

Appellant asserted that the 2007 interim rule was invalid because of the lack of a public comment period, and that the retroactive application provisions of the 2008 SMART guidelines are interpretive, not substantive. Applying the legal effects test, Judge Ryan rejects Appellant’s argument about the 2008 SMART guidelines, concluding that the retroactive application provisions are substantive and that Appellant therefore had a duty to register.

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

United States v. Newton, No. 14-0415/AR (CAAFlog case page): Oral argument audio.

United States v. Jones, No. 14-0057/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Newton, No. 14-0415/AR (CAAFlog case page) on Wednesday, November 19, 2014. The case presents CAAF with a rather complex interpretative issue:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.

Appellant joined the Army in 1998. But in 1995 Appellant was convicted of rape of a child. App. Br. at 6. That conviction is unrelated to his court-martial convictions, except that his conviction for failure to register as required by SORNA is based on his 1995 conviction. Appellant “did not register as a sex offender in Texas between October 1, 2009 and July 29, 2010.” App. Br. at 6. The issue before CAAF questions whether SORNA actually applied to Appellant at that time.

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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.

In addition to Jones (discussed here), CAAF granted review in two additional cases last week:

No. 14-0322/MC. U.S. v. Matthew A. GILBREATH. CCA 201200427. Review granted on the following issues:

I. WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE 31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

II. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT APPELLANT’S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b), UCMJ, AND MILITARY RULE OF EVIDENCE 305.

Briefs will be filed under Rule 25.

I analyzed the NMCCA’s decision in Gilbreath in a December, 2013, post titled: NMCCA finds that Article 31(b) does not apply to inactive reservists. I think CAAF’s grant is some evidence that United States v. Jones, No. 14-0071/AR (CAAFlog case page), is going to be a major decision about the application of Article 31(b) and the standard articulated in United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981).

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Review granted on the following issue:

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. SECTION 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL’S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013.)

Briefs will be filed under Rule 25.*

*  Judge Ohlson has recused himself from participation in this case.

I mentioned Newton back in January (in this post). The Army CCA’s opinion is available here. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of four offenses: Rape of a child under the age of twelve years in violation of Article 120; indecent acts in violation of Article 120; wrongfully sending a picture of himself to his natural daughter, who was under eighteen years of age, focused on his genital area, showing an erection underneath his clothing in violation of Article 134; and knowingly failing to register as required by the Sex Offender Registration and Notification Act, 18 U.S.C. § 2052(a) in violation of Article 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.

The Government charged the 134 offenses in the conjunctive, alleging both prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces. The members convicted the appellant as charged. On review the CCA noted that the Government presented no evidence that the conduct was prejudicial to good order and discipline, and found the Article 134 convictions legally and factually insufficient to sustain appellant’s convictions for conduct in violation of Clause 1 of Article 134, UCMJ.” Slip op. at 3. But it otherwise affirmed the convictions as service discrediting.

Judge Ohlson’s recusal in Newton is presumably due to his prior service with the Department of Justice.