UNITED STATES, Appellee, v. Anthony P. BALLAN, Machinist‘s Mate Second Class, U.S. Navy, Appellant.
No. 11-0413
Crim.App. No. 201000242
U.S. Court of Appeals for the Armed Forces
Decided March 1, 2012
Argued Dec. 13, 2011
For Appellant: Lieutenant Toren G.E. Mushovic, JAGC, USN (argued); Lieutenant Jentso Hwang, JAGC, USN, and Lieutenant Ryan Santicola, JAGC, USN.
Judge RYAN delivered the opinion of the Court.
A military judge, sitting as a general court-martial, convicted Appellant, pursuant to his pleas, of one specification of sodomy with a child under age twelve, one specification of indecent acts with a child,1 and eight specifications of indecent acts with another, violations of Articles 125 and 134, Uniform Code of Military Justice (UCMJ),
In accordance with Appellant‘s pretrial agreement, the convening authority agreed to suspend confinement in excess of twenty years for the period of confinement served plus twelve months.
Addressing an unrelated issue on appeal, the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) set aside the findings of guilty and dismissed Specifications 6, 7, and 8 of Charge III as legally insufficient. United States v. Ballan, No. NMCCA 201000242, slip op. at 3, 5 (N.-M.Ct.Crim.App. Jan. 27, 2011). The NMCCA reassessed Appellant‘s sentence, but found that the members would have nevertheless imposed the same sentence. Id. at 4.
Consistent with our decision in United States v. Wilkins, 29 M.J. 421 (C.M.A 1990), we hold that action by the convening authority showing an intent to refer a particular charge to trial is sufficient to satisfy the jurisdictional requirements of the Rules for Courts-Martial (R.C.M.). Further, we hold that while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused. See
I. FACTUAL BACKGROUND
The Naval Criminal Investigative Service (NCIS) began investigating Appellant in 2008 when his three biological children—all living separately in foster homes at the time—were observed exhibiting age-inappropriate sexual
On April 22, 2009, the Government preferred the following charges against Appellant: one specification of rape of a child, in violation of Article 120, UCMJ,
On June 5, 2009, Appellant and his defense counsel signed a valid unconditional waiver of investigation under
On July 10, 2009, the Staff Judge Advocate (SJA) sent the convening authority a memorandum regarding the charges pending against Appellant and attached, inter alia, the original charge sheet and Appellant‘s signed Memorandum of Pretrial Agreement. In this memorandum, the SJA first noted that Appellant had agreed “to plead guilty to 1 specification of Article 125, UCMJ, and 9 specifications of Article 134, UCMJ” and then recommended that the convening authority “refer the charges and specifications to general court-martial.” That same day, the convening authority referred the charges originally preferred against Appellant to the court-martial that he had ordered to be convened on March 18, 2009, and approved both parts of the pretrial agreement.
Prior to the court-martial, the parties submitted a stipulation of fact, which described the elements and underlying facts of each charge and specification. The stipulation‘s explanation of the offenses to which Appellant was pleading guilty included an acknowledgement that his conduct was prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. During Appellant‘s plea inquiry, the military judge explained each of the elements, including the terminal element, of the Charge I specification of indecent acts with a child, in violation of Article 134, UCMJ. The military judge verified that “these elements correctly describe[d]” Appellant‘s conduct, and Appellant described the conduct in his own words. The military judge then asked Appellant, “[W]ere these acts prejudicial to good order and discipline or service discrediting, or both in your opinion?” Appellant responded that they were “[s]ervice discrediting,” and explained why he believed this to be true.
The military judge repeated the same plea inquiry for each of the eight Article 134, UCMJ, specifications in Charge III: the military judge explained the elements, had Appellant describe the underlying conduct, and then asked Appellant whether—and if so, how—his actions were service discrediting or prejudicial to good order and discipline. For each of the eight specifications, Appellant explained how his conduct was service discrediting.
“We review jurisdictional questions de novo.” United States v. Alexander, 61 M.J. 266, 269 (C.A.A.F.2005). “A jurisdictional defect goes to the underlying authority of a court to hear a case [h]owever, where an error is procedural rather than jurisdictional in nature we test for material prejudice to a substantial right to determine whether relief is warranted.” Id. (citing
Appellant alleges that the court-martial lacked jurisdiction over the Charge I, Article 134, UCMJ, indecent acts with a child offense to which he pleaded guilty because this offense is not in fact an LIO of the Article 120, UCMJ, offense that was referred to court-martial by the convening authority. Under
That indecent acts with a child is not an LIO of rape of a child is easily determined by reference to settled case law, given that the offenses at issue are the same ones discussed in United States v. Jones—albeit with a child victim rather than an adult. 68 M.J. 465, 473 (C.A.A.F.2010) (applying the elements test and holding that “the elements of rape do not include all (or indeed any) of the elements of indecent acts“). We disagree, however, that the Article 134, UCMJ, indecent acts with a child offense to which Appellant pleaded guilty was not itself referred to the court-martial, in which case its status as an LIO for purposes of referral has no bearing on jurisdiction over that offense in this case.
The law is well settled that “[a]lthough the [referral] order is a jurisdictional prerequisite, the form of the order is not jurisdictional.” Wilkins, 29 M.J. at 424. Here, as in Wilkins, the convening authority referred one offense to court-martial on the charge sheet, but entered into a pretrial agreement whereby he agreed to accept a plea of guilty from Appellant to a different charge that was also not an LIO of the original charge. See id. at 422. The holding in Wilkins as to whether a court-martial has jurisdiction over the latter offense is directly on point here: “[i]mplicit” in the convening authority‘s entry into a pretrial agreement that provided for a plea of guilty to the charge and specification of indecent acts with another, in violation of Article 134, UCMJ, “was his personal decision that the ... charge be referred to the general court-martial....” See id. at 424. We held in Wilkins, and reiterate today, that the convening authority‘s entry into the pretrial agreement was the “functional equivalent” of a referral order and that it satisfied
Changing the charge from a violation of Article 120, UCMJ, to a violation of Article 134, UCMJ, was, admittedly, a major change. See
We conclude that Appellant pleaded guilty to a charge and specification of indecent acts with a child, which, by virtue of his pretrial agreement, was referred to court-martial and
III. ISSUE I: THE ARTICLE 134, UCMJ, OFFENSES
Whether a specification is defective and the remedy for such error are questions of law, which we review de novo. See United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006); see also United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F.2011) (determining the appropriate remedial standard by means of a de novo review of the rights at stake).
A. Defective Article 134, UCMJ, Specifications
In United States v. Fosler, we provided a synopsis of this Court‘s jurisprudence on sufficiency of indictments and the doctrine of LIOs. 70 M.J. 225, 229-34 (C.A.A.F.2011). We held that, in a contested case, the terminal element of Article 134, UCMJ, could not be implied from language in a specification alleging that the appellant had “wrongfully” committed adultery in violation of Article 134, UCMJ. Id. at 234. In coming to this conclusion, we rejected the argument that the Supreme Court‘s decision in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (upholding the constitutionality of Article 134, UCMJ, in part on the basis of its unique history in the military), allowed the Court to imply the terminal element where it had not been alleged. Fosler, 70 M.J. at 232. Reviewing “the charge and specification more narrowly than we might at later stages,” we determined that the phrase “Article 134” did not allege the terminal element expressly or by necessary implication. Id. This decision is consonant with United States v. Miller, 67 M.J. 385 (C.A.A.F.2009), which rejected both the doctrine of “implied elements,” and the corollary notion that the terminal element of “prejudicial to good order and discipline” or service discrediting was “inherent” in every enumerated offense. See id. at 388-89.
Thus, whether specifications for charged violations of Article 134, UCMJ, may be upheld in the guilty plea context where the terminal element is not alleged cannot be answered by determining that the act that an accused “did or failed to do,” MCM pt. IV, para. 60.b.(1), is inherently, impliedly, or as a matter of common sense, prejudicial to good order and discipline or service discrediting. See Jones, 68 M.J. at 471 (overruling prior precedent, which allowed the terminal element of Article 134, UCMJ, to be implied from the offense charged); Miller, 67 M.J. at 389 (overruling prior precedent, which held “that clauses 1 and 2 of Article 134, UCMJ, are per se included in every enumerated offense“).
While in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, the Court “view[s] [the] specification[ ] with maximum liberality,” United States v. Bryant, 30 M.J. 72, 73 (C.M.A.1990); see also United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986), such construction still does not permit us to “necessarily imply” a separate and distinct element from nothing beyond allegations of the act or failure to act itself. We emphasize yet again that the terminal element, which may be charged in three different ways, is an actual and distinct element of an Article 134, UCMJ, offense. See, e.g., Fosler, 70 M.J. at 228-30; United States v. Medina, 66 M.J. 21, 24-26 (C.A.A.F.2008). As such, the terminal element of Article 134, UCMJ, like any element of any criminal offense, must be separately charged and proven. See, e.g., Jones v. United States, 526 U.S. 227, 232, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (noting that any fact that is an element of an offense “must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt“); Schmuck v. United States, 489 U.S. 705, 718, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989); see also United States v. Denmon, 483 F.2d 1093, 1096 (8th Cir.1973) (“heartily applaud[ing] the salutory trend in recent years to simplify the indictment,” but
B. Plain Error Review and Remedies
As charged in this case, none of the specifications alleging violations of Article 134, UCMJ, to which Appellant pleaded guilty, alleged clause 1 or 2 of the terminal element of Article 134, UCMJ, which is error.4 See
C. Prejudice and the Plea Inquiry
In our view, in the context of a specification that was legally sufficient at the time of trial and to which a plea of guilty was entered and accepted, the real question is whether we will find prejudice and disturb the providence of a plea where the providence inquiry clearly delineates each element of the offense and shows that the appellant understood “to what offense and under what legal theory [he was] pleading guilty,” Medina, 66 M.J. at 26.7 We answer this question in the negative.
The guilty plea process within the military justice system thus ensures that an appellant has notice of the offense of which he may be convicted and all elements thereof before his plea is accepted and, moreover, protects him against double jeopardy. See Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); see also United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). This is illustrated by the providence inquiry in the present case.
During the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification. And the record “conspicuously reflect[s] that the accused ‘clearly understood the nature of the prohibited conduct’ as being in violation of clause 1 [or] clause 2, Article 134....” Medina, 66 M.J. at 28 (quoting United States v. Martinelli, 62 M.J. 52, 67 (C.A.A.F.2005), and comparing it to United States v. Mason, 60 M.J. 15, 19 (C.A.A.F.2004)); see also
After this, in order to have the military judge accept his pleas of guilty to the Article 134, UCMJ, specifications, Appellant was required to admit that his actions violated either clause 1 or 2 of the terminal element of that offense, and he did in fact admit that his actions were service discrediting. While this same service discrediting admission in Medina was superfluous, 66 M.J. at 28, Appellant‘s admissions that his acts were service discrediting were necessary in order for the military judge to accept Appellant‘s guilty pleas. See Care, 18 C.M.A. at 541, 40 C.M.R. at 253. As such, Appellant, unlike the appellant in Medina, “kn[ew] under what clause he [was] pleading guilty” and “clearly understood the nature of the prohibited conduct as being in violation of ... clause 2, Article 134....” See 66 M.J. at 28 (quoting Martinelli, 62 M.J. at 67) (quotation marks omitted).
There was no prejudice to the substantial rights of Appellant; this case, involving a defective specification and a proper plea inquiry, is distinguishable from a contested case involving a defective specification.8 In cases like this one, any notice issues or potential for prejudice are cured while there is still ample opportunity either for a change in tactics or for the accused to withdraw from the plea completely—not to mention that the military judge must, sua sponte, enter a not guilty plea to the affected charge and specification where he has found a plea improvident. See
In sum, while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone is insufficient to show prejudice to a substantial right. See Puckett v. United States, 556 U.S. 129, 142, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (finding that the mere showing of error cannot be “recast[]” as the effect on substantial rights).
IV. DECISION
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
BAKER, Chief Judge (concurring in the result):
I agree with the Court‘s resolution of the jurisdictional issue in this case in light of the convening authority‘s agreement to the express statement in the pretrial agreement that Appellant would plead “NOT GUILTY [to the Article 120, UCMJ, violation], but GUILTY to the LIO [Lesser Included Offense] of indecent acts with a child.” United States v. Ballan, 71 M.J. 28, 31 (C.A.A.F. 2012) (brackets in original). I also agree with the Court‘s reliance on United States v. Medina, 66 M.J. 21 (C.A.A.F.2008), for the proposition that an accused has a right to know to what offense, and in the Article 134, Uniform Code of Military Justice (UCMJ),
With respect to the Court‘s position regarding pending so-called Fosler trailers, in my view, the distinction made between a guilty plea case and a contested case is unpersuasive. It is not clear why, for example, given the same specification, proceeding on a common understanding during a guilty plea should be treated differently than proceeding on the basis of the same common understanding or judicial determination at the outset of a contested case. Yet, under this Court‘s precedent, the former is not prejudicial error, while the latter is reversible error on the basis of insufficient notice—whether objection is made or not. Compare Fosler, 70 M.J. at 233 (reversible error in contested trial where accused moved to dismiss defective specification that did not plead terminal element of Article 134, UCMJ), with United States v. McMurrin, 70 M.J. 15, 20 (C.A.A.F. 2011) (reversible error under United States v. Jones, 68 M.J. 465 (C.A.A.F.2010), in contested case where accused was improperly convicted of negligent homicide as a lesser included offense of involuntary manslaughter where no defense objection was raised to military judge‘s conclusion that negligent homicide was a lesser offense of involuntary manslaughter), and United States v. Girouard, 70 M.J. 5 (C.A.A.F.2011) (reversible error under United States v. Jones, 68 M.J. 465 (C.A.A.F.2010), in contested case where accused was convicted of negligent homicide as lesser included offense of premeditated murder where there was no objection by defense who requested instruction on negligent homicide).
A defective specification is necessarily addressed differently in the guilty plea context than in the contested trial context. In the guilty plea context, uncertainty, confusion or doubt regarding the terminal elements of Article 134, UCMJ, can be addressed during the plea inquiry, which the Court now concludes provides an accused fair notice. If the
Either the issue is one of notice or it is one purely of form. However, this Court‘s case law now takes the position that in a guilty plea context, the Fosler issue is one of actual notice, in which case there is no prejudice when an Article 134, UCMJ, specification omits the terminal elements, so long as the military judge explains the terminal elements. Whereas, in a contested case, the issue is one of form rather than actual notice; the same specification presents reversible error, even if the parties proceed with actual notice that the offense is based on either clause (1) or (2), of Article 134, UCMJ, or both.
In my view, the issue is the same in either context. Fair notice under the due process clause, which is surely demonstrated by actual notice, is satisfied whether that notice comes in the form of the plea colloquy, mutual agreement between the parties, or by judicial determination before or during the trial.