CAAFlog » September 2014 Term » United States v. Phillips

CAAF decided the Army case of United States v. Phillips, 74 M.J. 20, No. 14-0199/AR (CAAFlog case page) (link to slip op.), on Tuesday, January 6, 2015. The court rejects application of the ultimate offense doctrine to Appellant’s plea of guilty to disobeying the order of a superior commissioned officer, in violation of Article 90, and reverses a half-century old precedent that premised Article 90 liability on a commissioned officer giving such an order “with the full authority of his office, [thereby lifting] it above the common ruck.” Slip op. at  8 (quoting United States v. Loos, 16 C.M.R. 52, 54 (1954)).

Judge Stucky write for a unanimous court.

Appellant was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings. He violated that order. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

But a three-judge panel of the Army CCA rejected the plea to willful disobedience, applying the ultimate offense doctrine. That doctrine is a part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 39 C.M.R. 125, 128 (C.M.A. 1969). It’s also rarely employed. But the doctrine made something of a comeback at the Army court where, as I noted over a year ago in a post titled Is the “ultimate offense doctrine” making a comeback?, the court applied the doctrine to reverse a number of guilty pleas for violations of Articles 90, 91, and 92.

However, the Government sought en banc reconsideration in Phillips and the full CCA reversed the panel in a published opinion. CAAF then granted review of a single issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Judge Stucky’s opinion doesn’t eliminate the ultimate offense doctrine from military law, but it strictly curbs application of the doctrine in the future.

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

United States v. Phillips, No. 14-0199/AR (CAAFlog case page): Oral argument audio.

United States v. Morita, No. 14-5007/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), on Monday, October 20, 2014, at 9:30 a.m. The case will return the ultimate offense doctrine to CAAF for the first time in almost 20 years, with the following granted issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Appellant was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings. He violated that order. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

But a three-judge panel of the Army CCA rejected the plea to willful disobedience, applying the ultimate offense doctrine to conclude that “neither the stipulation of fact nor the providence inquiry developed or established sufficient facts to support a plea of guilty to a violation of Article 90, UCMJ, but rather merely establish the offense of breaking restriction in violation of Article 134, UCMJ.” United States v. Phillips, No. 20120585, slip op. at 2, 2013 WL 5402231 (A. Ct. Crim. App. Sep. 23, 2013). That decision caught my attention, and a little research revealed that it wasn’t the first time in recent history that the Army CCA had reversed such a plea. Rather, as I wrote in a year ago in a post titled Is the “ultimate offense doctrine” making a comeback?, it was the seventh such case over the prior 15 months.

But the Government sought en banc reconsideration and the full CCA reversed the panel in a published opinion that explained in part that “under the facts of this case, either Article 90, UCMJ, or Article 134, UCMJ (breaking restriction), were viable offenses properly chargeable by the government…” United States v. Phillips, 73 M.J. 572, __, slip op. at 3 (A. Ct. Crim. App. Jan. 31, 2014) (en banc op. on recon.). This prompted me to write a post titled “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine.”

Phillips got me excited because the ultimate offense doctrine really is a military justice wonk’s dream. It’s a part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 39 C.M.R. 125, 128 (C.M.A. 1969). It’s also the Loch Ness Monster of military appeals; everyone knows it’s there, but its rare appearance is the stuff of legend. To my knowledge, CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

And then CAAF granted review in Phillips and in three trailer cases: United States v. Nemeth, No. 14-0491/AR, (grant discussed here), United States v. Amaya, No. 14-0558/AR (grant discussed here), and United States v. Twinam, No. 14-0619/AR (grant discussed here). That got me really excited!

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This past week CAAF granted review in two cases and ordered briefs on a petition for extraordinary relief.

First, on Tuesday, July 29, CAAF granted review in another ultimate offense doctrine case: United States v. Amaya, No. 14-0558/AR.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF DISOBEYING A LAWFUL ORDER OF A SUPERIOR COMMISSIONED OFFICER.

Last October, in a post titled Is the “ultimate offense doctrine” making a comeback?, I analyzed the Army CCA’s unpublished opinion in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013), in which it applied the doctrine to reverse a guilty plea. A few months later I wrote: The Army CCA slows the return of the “ultimate offense doctrine”, analyzing the CCA’s unpublished decision in United States v. Bartsh, No. 20111104 (A.Ct.Crim.App. Dec. 31, 2013), where the court rejected the doctrine. The CCA also reconsidered its decision in Phillips, reversing course in a published decision, United States v. Phillips, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.), and prompting me to write: It was fun while it lasted… the Army CCA puts an end to the comeback of theultimate offense doctrine.

CAAF then granted review in Phillips (case No. 14-0199/AR, grant discussed here) and in a trailer (United States v. Nemeth, No. 14-0491/AR, grant discussed here). The grant in Amaya brings the total number of granted ultimate offense doctrine cases at CAAF to three. The Army CCA’s opinion in Amaya is available here, but it does not address the ultimate offense doctrine.

Next, on Thursday, July 31, CAAF granted review in United States v. Gutierrez, No. 13-0522/AF:

I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN GRIEVOUS BODILY HARM.

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.

III. WHETHER THE FACIALLY UNREASONABLE DELAY IN POST TRIAL PROCESSING DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO SPEEDY REVIEW URSUANT TO UNITED STATES V. MORENO, 63 M.J. 129 (C.A.A.F. 2006).

Briefs will be filed under Rule 25.

The CCA’s latest opinion in this case is available here. This is the second trip to CAAF for this case. The court granted review of the first two issues last September (discussed here), but summarily remanded the case to the CCA in December (discussed here) for consideration of the composition of the panel that considered the case. If you don’t know what this issue is about, you need to check out the case page for United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page).

CAAF’s grant of the speedy trial issue in Gutierrez returns the AFCCA’s delays – part of our #9 military justice story of 2013 – to CAAF in the wake of United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), in which the court found no prejudice. The appointment issue is also returning to CAAF in the upcoming term, in United States v. Jones, No. 14-0057/AF (grant discussed here), in which the court will consider the application of de facto officer doctrine (that it rejected in Janssen)

Finally, CAAF issued a really interesting order on Thursday, July 31, on a petition for extraordinary relief:

No. 14-8014/AF. U.S. v. Mark K. ARNESS. Crim. App. Dkt. No. 2013-30. On consideration of the writ-appeal petition filed by Appellant for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the Judge Advocate General of the Air Force appoint counsel to represent Appellant, and that both parties submit briefs on the following issue:

WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS HAD JURISDICTION TO ENTERTAIN A WRIT OF ERROR CORAM NOBIS WHERE THERE WAS NO STATUTORY JURISDICTION UNDER ARTICLE 66(b)(1), UCMJ, ON THE UNDERLYING CONVICTION AND THE CASE WAS NOT REFERRED TO THE COURT OF CRIMINAL APPEALS BY THE JUDGE ADVOCATE GENERAL UNDER ARTICLE 69(d)(1), UCMJ, AND WHERE THE COURT OF CRIMINAL APPEALS RELIED ON POTENTIAL JURISDICTION UNDER ARTICLE 69(d), UCMJ, AS ITS BASIS FOR ENTERTAINING THE WRIT (CITING DEW V. UNITED STATES, 48 M.J. 639 (ARMY CT. CRIM. APP. 1998)).

Briefs will be filed with the Court by August 29, 2014.

The AFCCA’s opinion is available here. The appellant is a Lieutenant Colonel who was convicted by a general court-martial of 14 specifications of unauthorized absence, 10 specifications of making false official statements, and 2 specifications of conduct unbecoming, in violation of Articles 86, 107, and 133, UCMJ. He was sentenced to confinement for 11 months and a reprimand. The sentence was below the threshold for automatic review by the Air Force CCA under Article 66(b), and so it was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69(a). The JAG found no error and then denied the appellant’s request for reconsideration. The appellant then filed a writ petition with the AFCCA, asserting 13 errors. The court found that it had jurisdiction to consider the petition, but denied relief:

We find the requested writ is “in aid of” our existing jurisdiction. The petitioner’s sentence at his court-martial did not entitle him to review by this Court under Article 66, UCMJ, 10 U.S.C. § 866. Instead, The Judge Advocate General reviewed his conviction under Article 69(a), UCMJ. Under Article 69(d)(1), UCMJ, The Judge Advocate General could have referred the case to this Court for review. In addition, Article 69(d)(2), UCMJ, authorizes this Court to review “any action taken by the Judge Advocate General under this section” in a court-martial. An application for a writ of error coram nobis is “properly viewed as a belated extension of the original proceeding during which the error occurred.” Denedo, 556 U.S. at 913. Since we could have properly reviewed the original proceeding under Article 69, UCMJ, we adopt the position of our fellow service court that a court of criminal appeals retains authority to issue extraordinary writs in cases reviewed under Article 69, UCMJ. See Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998). We also find that the requested writ is “necessary or appropriate,” as there are no adequate alternative remedies available to the petitioner.

Having concluded that we may review the petition, we hold that the petitioner is not entitled to relief.

United States v. Arness,  No. 2013-30, slip op. at 3 (A.F.Ct.Crim.App. Mar. 11, 2014). Presumably the appellant didn’t petition CAAF just to question the CCA’s jurisdiction to consider his 13 assertions of error.

On Thursday CAAF granted review of what appears to be a trailer of its grant in United States v. Phillips, No. 14-0199/AR (grant discussed here) (CCA opinion discussed here):

No. 14-0491/AR. U.S. v. Jacob T. NEMETH. CCA 20120653. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILT TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”

No briefs will be filed under Rule 25.

How many cases does it take before it’s a trailer park?

On Tuesday CAAF granted review of the published decision of the Army CCA in United States v. Phillips, No. 20120585, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.) (link to slip op.):

No. 14-0199/AR. U.S. v. Bryce M. PHILLIPS. CCA 20120585. Review granted on the following issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

I discussed the CCA’s en banc opinion in Phillips in a post in February titled “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine.” I concluded that post with the following observation:

Senior Judge Lind (with the majority) and Judge Krauss (with Senior Judge Yob) are clearly in stark ideological opposition on this issue. Senior Judge Lind sees it as a choice left to the prosecutor’s discretion, while Judge Krauss sees that discretion subject to significant limitations in law. Both are compelling arguments and any wonk has to get excited at the possibility that CAAF will weigh in – CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

Dreams do come true.

CAAF also granted review of an issue relating to disqualification of a panel member in an Army case:

No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Review granted on the following issue:

Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

The Army CCA rejected the error in an unpublished opinion issued in October and available here. The court deferred to the military judge’s decision, noting that “the military judge made extensive findings of fact, applied the liberal grant mandate, and employed the proper test for determining whether LTC JC should be challenged for cause based on implied bias.” Slip op. at 4.

Back in October I wrote a post about a comeback for the “ultimate offense doctrine” at the Army CCA. Over the prior 15 months, the court used the doctrine to set aside seven guilty pleas to violations of Articles 90, 91, and 92, for misconduct that amounted to the offense of breaking restriction in violation of Article 134.

The ultimate offense doctrine really is a military justice wonk’s dream. A part codified, part judicially created, practically equitable doctrine that embodies the simple rule that “an order to obey the law can have no validity beyond the limit of the ultimate offense committed.” United States v. Bratcher, 18 USCMA 125, 128 (1969). It’s also the Loch Ness Monster of military appeals; everyone knows it’s there, but its rare appearance is the stuff of legend. But the Army CCA’s string of seven decisions reversing guilty pleas while mentioning or discussing the doctrine was an unambiguous sighting. And from my vantage point last October, it looked like Appellate Military Judge Colonel Eric Krauss (a fellow ZooMass alum) had tamed the monster and put it to work, as he was the sole judge to participate in each of the seven reversals and he authored the first such decision (United States v. Gillum, No. 20111156 (A.Ct.Crim.App. Jul. 27, 2012) (link to unpub. op.)).

But then in January I noted that a panel of the CCA that didn’t include Judge Krauss (but did include the new Chief Judge, Brigadier General Pede) rejected application of the doctrine in an opinion that “find[s] no mandate in either policy or precedent that would require the government to charge breaking restriction as opposed to disobedience under Article 90, 91, or 92, UCMJ, as the facts may dictate. . . . These choices are matters well within the government’s discretion.” United States v. Bartsh, No. 20111104, slip op. at 3 (A.Ct.Crim.App. Dec. 31, 2013) (link to unpub. op.). The comeback was slowed.

Now the CCA has ended the comeback. In a published, en banc decision, the court reconsiders the opinion that was the basis for my October post, rejects the application of the doctrine, and affirms the guilty plea to willfully disobeying an order of a superior commissioned officer in violation of Article 90. United States v. Phillips, No. 20120585, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.) (link to slip op.). Senior Judge Lind (who dissented from the earlier decision) writes for the court on reconsideration, with Judge Krauss (who authored the earlier decision) and Senior Judge Yob (who concurred with Judge Krauss) both writing separately and both concurring in part and dissenting in part.

The Appellant in Phillips was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings. He violated that order. Eventually, he pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

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Three words caught my attention in the Army CCA’s summary disposition in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013) (unpub. op.) (slip op. here): ultimate offense doctrine.

Way back in United States v. Bratcher, 18 USCMA 125, 128 (1969), the Court of Military Appeals observed that:

an order to obey the law can have no validity beyond the limit of the ultimate offense committed

The Appellant in Phillips was pending court-martial in 2010 when he absconded. He was apprehended in 2012 and given a written counseling by his commanding officer, ordering him to remain on base at Fort Carson to ensure his presence for legal proceedings; an order that he violated. Eventually, Appellant pleaded guilty to multiple offenses, including one specification of willfully disobeying a superior commissioned officer in violation of Article 90, UCMJ.

But the Army CCA rejects the plea, applying the “ultimate offense doctrine.”

Neither the stipulation of fact nor the providence inquiry developed or established sufficient facts to support a plea of guilty to a violation of Article 90, UCMJ, but rather merely establish the offense of breaking restriction in violation of Article 134, UCMJ.

Slip op. at 2.

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