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 two trailer cases: United States v. Nemeth, No. 14-0491/AR, grant discussed here), and United States v. Amaya, No. 14-0558/AR (grant discussed here). That got me really excited!