Last term, in United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (C.A.A.F. 2013) (opinion) (CAAFlog case page), CAAF reversed Private Bennitt’s conviction of 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. The appellant was tried on both theories of involuntary manslaughter: by culpable negligence (Art. 119(b)(1)) and involving an offense directly affecting the person (Art. 119(b)(2)) (by aiding and abetting his girlfriend’s wrongful use of drugs). He was acquitted of the culpable negligence theory and convicted of the directly affecting the person theory, but CAAF determined that the “appellant’s conduct does not constitute physical assistance such that it is an offense directly affecting the person.” Slip op. at 15-16.

The appellant was also convicted in accordance with his pleas of guilty, by a general court-martial composed of a military judge alone, of four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, UCMJ. For these eight drug convictions, plus the manslaughter conviction, the appellant was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

After CAAF reversed the manslaughter conviction, it remanded the case to the Army CCA for either reconsideration of the sentence or remand to the convening authority for a sentencing rehearing. What should happen next is the issue CAAF is considering this term in United States v. Winckelmann, No. 11-0280/AR (Winckelmann IV) (CAAFlog case page). But four months ago, in my opinion analysis of CAAF’s decision in Bennitt, I wrote:

This Appellant is still convicted of the four specifications of use and four specifications of distribution of controlled substances, but he is no longer convicted of causing the death of [LK]. CAAF remands the case for either a sentence reassessment or a sentence rehearing which will undoubtedly result in a significantly reduced term of confinement. The Appellant was sentenced in January 2010 to 70 months of confinement (less a year of confinement credit), meaning he is likely now near or past his release date (considering credits earned while in confinement), so besides receiving back pay for the time he should not have been confined, the Appellant’s victory is limited.

Limited indeed, it turns out. In a summary disposition, the Army CCA affirms the full sentence as adjudged and approved by the convening authority:

Although appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for Courts-Martial 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence and it would have therefore been proper for the government to offer the following evidence: that appellant crushed an oxymorphone pill for L K and her friend TY; divided the contents for LK and TY who both then ingested the drug; and that pursuant to a toxicologist’s trial testimony, although a combination of drugs could account for LK’s death, “within a reasonable degree of scientific certainty” the oxymorphone was the “much bigger player” in LK’s death. . . .

Among other matters, we took into account appellant’s length of service and his service record. We also considered the serious nature of appellant’s remaining convictions. These offenses, including multiple drug distribution offenses that involved fellow soldiers and were committed on an Army installation, carry a maximum punishment that included seventy-two years of confinement. In addition, the dismissed offense merely reduced the maximum period of confinement from eighty-two years of confinement to seventy-two years. Based on the foregoing, we are convinced that appellant would have received a sentence on the remaining convictions of no less than that approved by the convening authority.

United States v. Bennitt, No. 20100172, slip op. at 2 (A.Ct.Crim.App. Sep. 25, 2013) (unpub. per curiam op.) (emphasis added) (slip op. here).

CAAF will tell us how the CCA can possibly be convinced of this fact in its decision this term in Winckelmann. But notably, the CCA doesn’t seem to give the appellant any credit for the fact that of his remaining eight convictions, he pleaded guilty to all of them without the benefit of a pretrial agreement.

15 Responses to “Bennitt’s sentence remains the same”

  1. RY says:

    What BS!  How is manslaughter proper aggravation of distro and use? That’s like charging possession and arguing distrio.  it was a separate offense and the aggravating facts were problematic.  At times, I favor demerits for poor CCA opinions…just BS.

  2. Cloudesley Shovell says:

    I must respectfully disagree, RY.  Take some time to consider RCM 1001(b)(4), regarding evidence in aggravation.  Bennitt distributed drugs illegally to a 16-year-old girl.  She died as a result, according to expert testimony at trial.  That evidence comes in during sentencing as “aggravating circumstances directly related to or resulting from the offenses of which the accused has been found guilty” regardless of whether Bennitt is charged with her death at all.  It’s still an aggravating circumstance directly related to or resulting from the distribution charges. 
    Bennitt got 70 months.  That’s 5 years and 10 months.  He got off easy.  Had Bennitt been prosecuted in federal court, instead of the incredibly lenient and forgiving military justice system, he would have been looking at serving a substantial portion of his potential 72-year sentence, most likely decades of incarceration, and that in a federal pound-you-in-the-ass prison.
    Kind regards,

  3. stewie says:

    That last sentence may have been the funniest thing I’ve read on here. 

  4. RY says:

    Sir, I’m familiar with the provision you cite but this is an end around the legal failure of that purported aggravation.   He provided drugs, got it. She took them and overdosed, got it. She’s old enough to make her medical decisions in many states and above age of consent for UCMJ. She is responsible for her choices.  As a matter of law, he was not guilty of the purported aggravation.  That makes it akin to using an acquittal as aggravation and I find that highly improper.  Consider also CAAF argument from last term…if govt charged manslaughter, they don’t get to argue murder even if they could have charged and proven it.  This is similar but calling it aggravation, even though legally he was not guilty as a matter of law.

  5. St. Michael says:

    RY, if I’m correctly understanding your argument, then the girlfriend’s death is not proper aggravation.  In other words, if the government chose to not charge manslaughter (which, according to the court it should not have), then the government could not present evidence that the girlfriend died as a result of the appellant’s crime.  I do not understand how that comports with RCM 1001(b)(4).  What does the age of consent or state law regarding medical decisions have to do with proper matters in aggravation?

  6. RY says:

    Simply put, it matters not or this case whether uncharged manslaughter could be used in aggravation. That’s a whole other question. In this case he was not guilty of both versions of manslaughter, one by MJ and the other as a metter of law on appeal.  How can you get indirectly what you cannot get directly? If he’s not guilty, then it does not get consideration as an aggravator any more than sentencing an accused for the charges h was acquitted of.

  7. Zachary D Spilman says:

    Gee, RY, the fact that he gave her the drugs, and the place, and the means to kill herself isn’t a matter in aggravation? Really? I mean really?!? Did you not see Trainspotting, this scene in particular (link to YouTube)?

    I expected a meaningful reduction in sentence, seeing as he’s no longer convicted of killing someone (which, if you couldn’t tell from my opinion analysis, I think he’d have an affirmed conviction for doing but for the Government’s all-of-the-above charging decision). But I’m confident that under the facts of this case, the death is a proper matter in aggravation.

  8. stewie says:

    I can agree it is proper aggravation, but the idea that he “got off light” so we wont take off anymore? That’s not the proper analysis.  (not saying ACCA did that analysis but CS did).  He got what he got with the manslaughter, it seems fairly common sense that he would have gotten less without it.  To argue otherwise minimizes the crime.

  9. Contract Lawyer says:

    Seems logical, but ACCA is basically saying what sounds good to keep the sentence the same.  Their arguments would be more valid for a prosecutor arguing to a panel, of course with the limitations that come with that and the fact that the panel does not know the quantum of the original sentence.  Even if this is legal, doesn’t seem fair.
    Has ACCA become a tool of the Government?

  10. Cloudesley Shovell says:

    While I understand your point, one cannot change the fact that another human being is dead, and that there is a connection between Bennitt’s crimes and that death.  The fact that the girl died of an overdose of drugs distributed by Bennitt is admissible as evidence in aggravation for the distribution of drugs.  I’m sure I sound a bit tautological, but I don’t have the time to write a dissertation about it.
    Consider some knucklehead who gets marijuana sent to him in, say, The Stan.  He gets the drugs inside a chocolate bunny or whatever, and shares the weed with some buddies.  They get found out.  Because knucklehead and his buddies are now in jail pending trial, replacements must be sent from the US to take over their responsibilities in their command.  Causing some other servicemember to be deployed on no notice isn’t a crime.  One cannot be punished for it standing alone.  But it sure as hell is an aggravating circumstance that may be considered in sentencing, and knucklehead deserves to be punished more severely than if the identical crime occurred stateside and did not impact others in the same way.
    Stewie:  Yes, I was a bit flip, but one should never pass up a chance to allude to Office Space.  Compared to federal courts, military courts are pretty light sentencers.  But my personal opinion is that federal courts punish many far to severely as a result of misguided mandatory sentencing laws.  Military courts usually get it about right.  That being said, especially considering the aggravating circumstances in this case, the sentence is in no way unfair or unjust or too severe.  Let us not forget that OJ Simpson got sentenced to 33 years (!) in prison for what was basically a dispute about memorabilia that got out of hand.  My personal opinion is that he got hammered so hard because everyone knows he got away with murder.
    Regards to all,

  11. dyskolos says:

    When someone dies, the penalty goes up. It is to be expected.  It’s still a light sentence. He’ll get over it; the girl won’t.

  12. stewie says:

    Simple question, do you believe that specific jury if they didn’t have the manslaughter charge in front of them, would have given the same sentence?
    Because I don’t see how you can.

  13. Cloudesley Shovell says:

    Stewie:  Your question goes right to the heart of the Sales line of cases.  One wonders if CAAF will take a harder look at this resentencing shortcut (back to CCA rather than back to trial level) in light of Judge Baker’s concurrence in Moffeit.  Does Art. 66(c) really contemplate CCA reconsideration of a sentence after review by CAAF?  Art. 66(c) is a pretty broad grant of power, but is it that broad?  If the CCA had dismissed the manslaughter charge upon its initial review, could they have reassessed and approved the original sentence?  I think so, given the particular facts of this case.
    It was judge alone at trial.  Probably a wise decision, considering the facts as outlined in CAAF’s opinion.  I think a members panel would have adjudged a much harsher sentence.  As for resentencing, even absent the charge of manslaughter, the members would still have had the fact of the girl’s death by overdose before them.  I’m not sure it would make a whole lot of difference.
    Kind regards to all,

  14. stewie says:

    I missed it was JA, doesn’t change my question except replace jury with factfinder.  Logically, the end result is that you are saying the guy didn’t get a day in jail for the manslaughter.
    Whether or not he was “lucky” or should have gotten a much worse sentence shouldn’t factor into things IMO.  He got what he got, and then the most significant conviction, by far, was taken off the books.  To say, no change in landscape I don’t get.
    What’s the harm in sending it back for a new sentencing hearing? If you are correct, then he will get roughly the same sentence anyways.

  15. charlie gittins says:

    Has ACCA become a tool of the Government?
    Really?  Someone really asks whether this is possible?  Under what rock have you been living, and for how long?  CCAs are the speed bumps on the way to CAAF.  Gleason, Schmidt, Bright, just for starters.  Three cases “dismissed” by career officers that went very differently with a panel of civilian appellate judges that needed not to be concerned about their next assignments.