Like most military appellate counsel, I’m working on several Ballan trailer briefs, and I was working on one particular Ballan trailer brief this morning when the thoughts leading to this post occurred to me. As a result of working with the opinion in that context (a context which, admittedly, is an exercise in attempting to craft an argument for reversal of my client’s conviction — a context which I’m fully aware is likely to skew my perceptions and analysis), I’m struck by a question: why doesn’t R.C.M. 807 compel the opposite outcome?
Ballan seems to hold that the specification at issue failed to state an offense. R.C.M. 907(b) sets out two “[n]onwaivable grounds” for dismissal, one of which is failure to state an offense. The rule provides: “A charge or specification shall be dismissed at any stage of the proceedings if . . . . the specification fails to state an offense.” To my simple way of thinking, that indicates that if at any stage of the proceedings, including on appeal, it is determined that a specification failed to state an offense, then it must be dismissed.
The Ballan majority addressed R.C.M. 907: “While the rules state that a charge or specification that fails to state an offense should be dismissed, R.C.M. 907(b)(1), a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error.” Ballan, slip op. at 14. To me, it’s significant that R.C.M. 907 says that such a spec “shall be dismissed,” not “should be dismissed.” In support of the proposition that a defective spec, if not challenged at trial, is tested for plain error, the Ballan majority cites a Supreme Court case and a Tenth Circuit case. United States v. Cotton, 535 U.S. 625, 631-32 (2002); United States v. Sinks, 473 F.3d 1315, 1320-21 (10th Cir. 2007). But neither of those cases was governed by R.C.M. 907(b)(1). Rather, they involved federal criminal proceedings governed by Fed. R. Crim. P. 12 and 34, the wording of which is sufficiently different from that of R.C.M. 907(b)(1) that it isn’t apparent to me why those cases should govern the resolution of this issue in a military context. For example, when Fed. R. Crim. P. 34 was amended in 1966, the Rules Advisory Committee noted: “The words ‘on motion of a defendant’ are added to make clear here, as in Rule 33, that the court may act only pursuant to a timely motion by the defendant.” Contrast that concern for a timely motion with R.C.M. 907, in which the President declares that a challenge based on failure to state an offense is “[n]onwaivable” and shall result in dismissal “at any stage of the proceedings.”
Again, I’m fully aware that I’m looking at this issue through not merely defense goggles, but extra-warping defense goggles in the context of preparing a brief. I can also see potential rationales for a court holding that what appears to me to be R.C.M. 907(b)(1)’s plain language won’t be enforced, including a potential conflict with Article 59(a). Resolving such an issue would involve complex and fascinating considerations including the extent to which Chevron deference is appropriate when considering whether to displace the President’s interpretation of the UCMJ. But for the moment, I’m left wondering why R.C.M. 907 didn’t compel a different outcome.
[Further disclosure: before Ballan came out, I had argued in at least one brief that a plain error analysis isn’t applicable in this context because of R.C.M. 907’s “[n]onwaivable” and “at any stage of the proceedings” language — an argument that is crushed by Ballan. Further further disclosure: I have several Ballan-trailer cases pending before both CAAF and AFCCA.]