CAAFlog » September 2015 Term » United States v. Captain

CAAF decided the Marine Corps case of United States v. Captain, 75 M.J. 99, No. 15-0172/MC (CAAFlog case page) (link to slip op.), on Thursday, February 4, 2016. The court finds no prejudice to the appellant in his counsel’s failure to present extrinsic evidence of his prior good service and to maintain a written record of the appellant’s agreement to request a punitive discharge. However, the court finds that the convening authority’s action is ambiguous with respect to the punitive discharge, and remands the case for corrective action by the convening authority.

Chief Judge Erdmann writes for a unanimous court.

CAAF specified two issues for review:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s defense counsel withheld evidence of the appellant’s good military character and conceded that a punitive discharge would be an appropriate sentence. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge. When taking action on the results of the court-martial, the convening authority disapproved the fine and then wrote:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Slip op. at 9. The convening authority’s action did not explicitly approve the adjudged discharge, but it included a statement that “the punitive discharge will be executed, after final judgment.” Slip op. at 9.

On appeal, the appellant asserted that he suffered ineffective assistance of counsel and that the convening authority’s action did not approve the punitive discharge, prohibiting its execution.

CAAF unanimously rejects both of these claims. For the ineffective assistance of counsel claim, Chief Judge Erdmann does not specifically address whether the appellant’s counsel was deficient, but rather finds that the appellant was not prejudiced because the record reflects that the military judge considered his good military character and that the appellant agreed to concede that a punitive discharge was appropriate. For the convening authority’s action, Chief Judge Erdmann finds it ambiguous because of the lack of explicit approval coupled with the reference to future execution. Because the action is ambiguous, CAAF remands for a new action.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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

United States v. Captain, No. 15-0172/MC (CAAFlog case page): Oral argument audio.

United States v. Riggins, No. 15-0334/MC (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Marine Corps case of United States v. Captain, No. 15-0172/MC (CAAFlog case page), on Tuesday, October 27, 2015, at 9:30 a.m. The case presents one issue of ineffective assistance of counsel in sentencing and one issue of involving the convening authority’s action:

I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.

II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

In accordance with a pretrial agreement, the appellant pleaded guilty, at a general court-martial composed of a military judge alone, of one specification of one specification of abusive sexual contact in violation of Article 120. During the sentencing phase of the court-martial, the appellant’s detailed military defense counsel “did not present any extrinsic evidence of Sgt Captain’s good military character,” and further “during his sentencing argument, trial defense counsel asked the military judge to sentence Sgt Captain to a dishonorable discharge.” App. Br. at 2. The military judge sentenced the appellant to confinement for 5 years and 6 months, reduction to E-1, total forfeitures, a $50,000 fine, and a dishonorable discharge.

The convening authority suspended all confinement in excess of four years in accordance with the terms of the pretrial agreement. The convening authority also disapproved the fine (presumably as an act of clemency). But as for the remainder of the sentence, the convening authority’s action provides only that:

The remaining part of the adjudged sentence as adjudged consisting of forfeiture of all pay and allowances, confinement for 5 years, 6 months, 0 days, and reduction to the lowest enlisted grade is approved.

Gov’t Br. at 19 (quoting action). This approval omits the adjudged dishonorable discharge.

The appellant’s case was forwarded for automatic review by the Navy-Marine Corps CCA, where the appellant asserted ineffective assistance of counsel (IAC) in his defense counsel’s failure to present sentencing evidence and argument in favor of a dishonorable discharge. In particular, the appellant asserted that he did not consent to his defense counsel asking the court-martial to adjudge a punitive discharge. The CCA ordered a DuBay hearing (a post-trial fact-finding hearing), and then it rejected the appellant’s claims of IAC. The DuBay found, and the CCA agreed, that the appellant’s defense counsel made a tactical decision to not call witnesses (for fear of evidence the Government would offer in rebuttal), and that the appellant and his counsel had agreed to request a dishonorable discharge in the hope that it would lead to a reduced sentence of confinement (even though counsel failed to create a record of that agreement). United States v. Captain, No. 201300137 (N-M. Ct. Crim. App. Jul. 27, 2014).

Notably, the CCA’s decision does not address the convening authority’s failure to include the punitive discharge in his action approving the sentence. It is unclear if the appellant raised this issue before the CCA.

Two significant and seemingly bright-line military precedents will be tested in CAAF’s review in Captain.

First, military law is clear that “when defense counsel does seek a punitive discharge or does concede the appropriateness of such a discharge – even as a tactical step to accomplish mitigation of other elements of a possible sentence – counsel must make a record that such advocacy is pursuant to the accused’s wishes.” United States v. Dresen, 40 M.J. 462, 465 (C.M.A. 1994). No such record was made in this case.

Second, “in light of the convening authority’s broad discretion to provide relief from the adjudged sentence and the importance of this role in the court-martial process, when the plain language of the convening authority’s action is facially complete and unambiguous, its meaning must be given effect.” United States v. Wilson, 65 M.J. 140, 141 (C.A.A.F. 2007). “Accordingly, the convening authority must exercise care in drafting the action.” Ibid. The convening authority’s action in this case appears unambiguous in its failure to approve the adjudged punitive discharge.

Case Links:
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Yesterday CAAF granted review of two issues in a Marine Corps case:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

I.    WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

II.   WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

Other recent IAC cases on CAAF’s docket include:

  • United States v. Spurling, __ M.J. __, No. 15-0228/MC (C.A.A.F. Feb. 6, 2015) (summary disp.) (discussed here).
  • United States v. McIntosh, No. 14-0685/AF (rev. granted Jan. 15, 2015) (discussed here).
  • United States v. Engler, __ M.J. __, No. 15-0077/MC (C.A.A.F. Dec. 3, 2014) (summary disp.) (discussed here).