Opinion Analysis: A publishing decision affects computation of the maximum punishment in United States v. Busch, No.15-0477/AF
CAAF decided the Air Force case of United States v. Busch, 75 M.J. 87, No.15-0477/AF (CAAFlog case page), on Friday, January 29, 2016. The court unanimously rejects the appellant’s ex post facto challenge to the military judge’s determination of the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012). However, the court narrowly affirms the military judge’s determination, the findings and the sentence, and the decision of the Air Force CCA.
Chief Judge Erdmann writes for the court, joined by Judge Ohlson and Judge Diaz (of the Fourth Circuit, sitting by designation). Judge Stucky dissents, joined by Judge Ryan.
CAAF granted review of a single issue:
At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?
The appellant pleaded guilty to multiple offenses, including one specification of sexual abuse of a child in violation of Article 120b(c) (2012) for exposing his genitals and masturbating while the child watched via Skype. The appellant’s misconduct occurred in early 2013; after the 2012 statute’s effective date but before President Obama prescribed maximum punishments for the new offense in Executive Order 13643. The President’s failure to prescribe a maximum punishment forced the military judge to determine the maximum punishment for the appellant’s violation of Article 120b(c) by resorting to Rule for Courts-Martial 1003(c)(1)(B), which requires comparing the charged offense to other offenses listed in the Manual and in the United States Code. If a different offense listed in Part IV of the Manual is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(i) permits using the maximum punishment for that closely related offense. However, if no listed offense is closely related to the charged offense, then R.C.M. 1003(c)(1)(B)(ii) requires looking to offenses in the United States Code and the custom of the service.
Applying R.C.M. 1003(c)(1)(B)(i), the military judge concluded that the appellant’s offense of sexual abuse of a child was closely related to the offense of indecent liberty with a child in violation of Article 120(j) (2006), for which the maximum authorized punishment includes confinement for 15 years. The defense, however, argued that the offense of indecent exposure in violation of Article 120(n) (2006), with it’s one-year maximum authorized term of confinement, was more closely related. Despite this objection, the appellant still pleaded guilty. Including the computed 15-year maximum, the appellant faced a total maximum authorized confinement of 22 years and one month, and the military judge sentenced him to confinement for six years, reduction to E-1, total forfeitures, and a dishonorable discharge.
In determining that indecent liberty with a child in violation of Article 120(j) (2006) was closely related to the appellant’s offense of sexual abuse of a child in violation of Article 120b(c) (2012), the military judge made reference to Executive Order 13643. That reference prompted the appellant’s ex post facto claim, as he asserted that the military judge wrongly applied the executive order issued after his commission of the offense. CAAF unanimously rejects this claim.
However, the majority finds that the military judge was wrong to use R.C.M. 1003(c)(1)(B)(i), but finds that application of R.C.M. 1003(c)(1)(B)(ii) reaches the same result. The dissent, however, highlights a significant weakness in the majority’s analysis.