United States v. Bennitt
2015 CAAF LEXIS 325
C.A.A.F.2015Background
- Appellant was convicted by a general court-martial of four specifications of wrongful distribution and three specifications of wrongful use of oxymorphone under Article 112a, UCMJ, with an additional involuntary manslaughter conviction later found legally insufficient.
- Appellant received a severe sentence including confinement, reduction to E-1, forfeitures, and a dishonorable discharge; the Army Court of Criminal Appeals (CCA) initially reassessed the sentence and reaffirmed it.
- This Court set aside the involuntary manslaughter conviction as legally insufficient and remanded for sentence reassessment or a rehearing; Bennitt I also directed reassessment related to aggravation evidence from LK’s death.
- CCA later reassessed and reimposed the same sentence, relying on LK’s death as aggravation linked to the oxymorphone distribution, and held the LK distribution to LK encompassed by the Article 112a conviction.
- This Court reversed the CCA on the legal basis that the Article 112a conviction did not include distribution to LK, vacated the CCA’s conclusion, and remanded for proper sentence reassessment or rehearing.
- Dissent notes that the majority rewrites the law on “on or about” and argues the military judge appropriately found distribution to LK occurred on or about February 14, including potential early hours of February 15.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Bennitt I error by treating the manslaughter conviction as not arising from a person-directed offense? | Bennitt contends the manslaughter theory was properly supported by the distribution to LK. | Bennitt argues the record shows the distribution was not a direct offense against LK and cannot broaden the included offense. | No, the court held the CCA erred by treating LK distribution as included; reversed and remanded. |
| Whether the Article 112a conviction included distribution to LK to support the manslaughter charge | Bennitt asserts the Article 112a conviction separately covers distribution to LK. | Bennitt argues the government did not prove distribution to LK under Article 112a. | Yes, the Article 112a conviction did not include distribution to LK; reversed. |
| Whether the CCA used an impermissible theory not presented to the trier of fact to affirm the included offense | Bennitt claims the trial record supports a theory tying LK’s death to manslaughter via distribution. | Bennitt argues the evidence used to support the manslaughter charge was properly part of the trial. | Yes, the CCA based its affirmance on an unpresented theory; reversed. |
Key Cases Cited
- Dunn v. United States, 442 U.S. 100 (1979) (right to be tried on specific charges; cannot affirm included offense on theory not presented)
- Miller, United States v., 67 M.J. 385 (C.A.A.F. 2009) (cannot affirm an included offense on a theory not presented to factfinder)
- Riley, United States v., 50 M.J. 410 (C.A.A.F. 1999) (cannot affirm included offense on theory not presented to trier of fact)
- Walters, United States v., 58 M.J. 391 (C.A.A.F. 2003) (cannot contradict not guilty findings when affirming offenses)
- Baier, United States v., 60 M.J. 382 (C.A.A.F. 2005) (reassessment must rely on correct legal standards)
- Tollinchi, United States v., 54 M.J. 80 (C.A.A.F. 2000) (on or about language connotes near dates; not exact date requirement)
- Hunt, United States v., 37 M.J. 344 (C.M.A. 1993) (government not required to prove exact date when pleading uses on or about)
- Brown, United States v., 34 M.J. 105 (C.M.A. 1992) (on or about terms contemplate time within weeks of charged date)
- Nersesian, United States v., 824 F.2d 1294 (2d Cir. 1987) (definition of time flexibility within 'on or about' language)
- Bennitt I, 72 M.J. 266 (C.A.A.F. 2013) (involuntary manslaughter not directly affecting the person; law-of-the-case)