CAAF decided the Army case of United States v. Bennitt, 74 M.J. 125, No. 12-0616/AR (CAAFlog case page) (link to slip op.), on Thursday, April 2, 2015. The court holds that the Army CCA erred in approving Appellant’s sentence, because the CCA made a finding based on a theory not presented at trial. CAAF reverses the decision of the Army court and remands the case for further action.

Judge Ryan write for the court. She is joined by all but Chief Judge Baker, who dissents.

CAAF granted review of a single issue:

Whether the Army Court of Criminal Appeals abused its discretion by reaffirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

This is CAAF’s second opinion in this case. Previously, in a 2013 decision (CAAFlog case page), CAAF reversed Appellant’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend (“LK”), who overdosed and died in Appellant’s barracks room in 2009. Yet Appellant also pleaded guilty to four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, and CAAF remanded the case for reassessment of the sentence based on just those offenses. Despite the fact that Appellant was no longer convicted of manslaughter, the CCA affirmed the entire adjudged sentence (confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge) in two opinions:

The CCA explained that “[a]lthough appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for CourtsMartial [sic] 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 . . . .” Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013 WL 5588229, at *1.

On a motion for reconsideration in light of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again reassessed, and did not change, Appellant’s sentence. United States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App. Mar. 25, 2014) (unpublished). The CCA’s reasoning did change, however. The CCA concluded that evidence of LK’s death was admissible aggravation evidence because Appellant’s Article 112a, UCMJ, conviction of oxymorphone distribution on divers occasions on or about February 14, 2009, included distribution of the drug to LK. Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at *3.

Slip op. at 2-3 (marks in original). Yet Judge Ryan finds fault with the CCA’s revised reasoning, concluding that “the CCA erred as a matter of law in its second reassessment when it stated that Appellant was convicted of distribution of oxymorphone to LK as part of his Article 112a, UCMJ, conviction.” Slip op. at 4. This was error because:

The CCA’s finding was based on “a theory not presented to the trier of fact.”

Slip op. at 9.

The events leading to the death of Appellant’s girlfriend occurred in the late night of February 14 and early morning of February 15, 2009. Appellant was charged in connection with those events:

In relevant part, the Government charged Appellant with distribution of oxymorphone “on divers occasions between on or about 14 February 2009 and on or about 15 February 2009,” a violation of Article 112a, UCMJ, as well as involuntary manslaughter of LK by “aiding or abetting her wrongful use Oxymorphone and Alprazolam,” in violation of Article 119, UCMJ.

Slip op. at 6. He pleaded guilty to the distribution offense, but only to distribution on February 14. He pleaded not guilty to the “on or about 15 February 2009” language, and the military judge excepted that language from the finding of guilty. Because of this, “neither this Court nor the CCA is free to conclude that Appellant’s conviction for that specification of the Article 112a, UCMJ, charge included distribution on February 15 — even if the record showed that he actually distributed on that day.” Slip op. at 11.

Yet Judge Ryan does not consider the adjudged findings in a vacuum. She also notes that the Government’s theory of the case linked Appellant’s distribution to LK to the manslaughter offense alone:

The record, particularly the Government’s opening statement, reveals that the Government’s theory in the merits phase was that Appellant was guilty of involuntary manslaughter, in violation of Article 119, UCMJ, by means of aiding and abetting LK’s use of oxymorphone. In pursuit of this, the Government did present evidence — most notably Appellant’s second sworn statement — that he distributed oxymorphone to LK; however, the Government brought this evidence as support for the Article 119, UCMJ, involuntary manslaughter charge, which this Court set aside.

Slip op. at 10. Judge Ryan also notes that the evidence presented at trial is legally insufficient to prove that Appellant distributed to LK on February 14, in part because Appellant’s admissions (admitted into evidence) stated that “his relevant interactions with LK all occurred on February 15,” and another witness “testified that she, Appellant, and LK arrived on base at 11:17 p.m. on February 14, [however,] nothing in her testimony suggests that she or LK took oxymorphone on February 14.” Slip op. at 11-12.

Yet Chief Judge Baker dissents, asserting that the majority wrongly concludes that Appellant was not convicted of distribution to LK, because:

This conclusion is contrary to the military judge’s findings, the lower court’s findings, and the record in this case. The majority’s conclusion is also contrary to this Court’s long-standing practice interpreting the language “on or about,” which, in this case, encompasses the early morning hours of February 15 as well as February 14 for a specification alleging “on or about February 14.”

Diss. op. at 1. Chief Judge Baker finds that “the military judge, sitting as the reasonable trier of fact in the case, could have found that the distribution of oxymorphone to LK occurred during the evening of the 14th.” Diss. op. at 3. He also notes that:

[E]ven if one were to conclude that [the distribution] occurred during the very early hours of the 15th, (the participants were not keeping careful note of the time), it would still have been considered “on or about” the 14th. In essence, the military judge’s exception of the language “and on or about 15 February 2009” had no legal significance given the fact that the finding included the “divers occasions” language and the “on or about 14 February” language. Thus, the record supports a finding in this case that Appellant distributed oxymorphone to the victim LK “on or about 14 February 2009.”

Diss. op. at 4. Because on or about are “words of art in pleading which generally connote any time within a few weeks of the ‘on or about’ date,” diss. op. at 4, and because those words were not excepted from the plea of guilty to distribution on February 14, Chief Judge Baker finds that “in accordance with this Court’s long-standing case law and military practice, a conviction ‘on or about February 14’ would cover the potential variances in fact as to the precise moment on February 14 or 15 at which the drug was distributed to LK, diss. op. at 5.

His dissent concludes:

I am not aware of authority that requires the prosecution during the trial of the facts to continually announce what evidence is being offered to support individual offenses, and indeed the majority cites none. In every criminal trial, the charges are presented, the evidence is admitted, and the trier of fact returns a verdict. That is exactly what happened in this case. Thus, it appears the majority is substituting its own finding on the facts, notwithstanding those entered by the military judge and the CCA, and without identifying how as a matter of law either the military judge or the CCA erred.

Diss. op. at 6.

The CCA must now consider Appellant’s sentence for a fourth time. But CAAF’s opinion seems to foreclose any possibility that the death of LK will be a significant factor in reviewing Appellant’s sentence. Rather, the Government’s decision to prosecute Appellant for manslaughter in connection with LK’s death (using what I previously noted was a rather creative prosecution that involved double-charging Appellant) will likely result in Appellant escaping any responsibility for that tragic outcome.

Case Links:
United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page)
ACCA opinion
Blog post: Bennitt’s sentence remains the same
ACCA opinion on reconsideration
Blog post: Two new grants (one predicted, the other a trailer) and the return of Senior Judge Cox
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

One Response to “Opinion Analysis: A finding based on a theory not presented at trial means reversal in United States v. Bennitt, No. 12-0616/AR”

  1. ContractLawyer says:

    Next thing you know, they will be giving Bennitt an ETS award.