United States v. Kahmann

STATES, Appellee, UNITED KAHMANN, Private,

Matthew S. Appellant. Corps,

Marine

No. 03-0522.

Crim.App. No. 200200355. Appeals

U.S. Court Forces. Armed

Argued 2004. Jan.

Decided March

310 II, Appellee: Major Raymond

For E. Beal (argued); USMC Commander Robert P. (on Taishoff, JAGC, brief); USN Colonel Finnie, USMC, M.E. and Lieutenant Lars Johnson, JAGC, C. USNR.

Judge opinion EFFRON delivered the the Court. special

At a composed court-martial aof alone, military judge sitting Appellant was convicted, pursuant pleas, to his of unautho absence, rized violation of Article Uni form Code of Military Justice [hereinafter UCMJ], § 10 U.S.C. 886 He was discharge, sentenced a bad-conduct con days, finement for 90 and forfeiture of $695 per pay month for three months. The convening authority approved the sentence adjudged, suspended as all confinement days pursuant excess pre-trial agreement. The Court Criminal Appeals initially findings affirmed the modify while ing unpublished opinion. sentence subsequently The court vacated that decision opinion and issued a new affirmed findings and ap affirmed sentence as proved convening authority. (N.M.Ct. Kahmann, States M.J. 667 banc). Crim.App.2003)(en Appellant’s petition, granted On we review following issue: THE WHETHER MILITARY JUDGE COMMITTED PLAIN ERROR BY AD- MITTING OF A EVIDENCE PRIOR SUMMARY COURT-MARTIAL CON- VICTION DURING PRESENTENCING WHEN THERE WAS NO SHOWING THAT ACCUSED HAD AN OPPORTU- NITY TO SPEAK WITH COUNSEL BE- FORE THE SUMMARY COURT-MAR- TIAL AND NO EVIDENCE SHOWING THE COMPLIANCE WITH REVIEW REQUIREMENTS J., EFFRON, UNDER ARTICLE opinion delivered the UCMJ, Court, GIERKE, BAKER, § U.S.C. which ERDMANN, JJ., CRAWFORD, joined. below, For the reasons set forth we hold that C.J., filed an opinion concurring in the result. prior summary admission of the court-mar- Appellant: during

For tial conviction into evidence Lieutenant M. Eric Ever- the sen- sole, JAGC, tencing (argued); did not constitute USNR Commander JAGC, George Reilly, F. USN. error. expedited consider- mary

I. BACKGROUND UCMJ, minor offenses. ation 1301(b). PUN- (2000); A. OF NONJUDICIAL A RECORDS 10 U.S.C. BY AND CONVICTIONS single ISHMENT consists of officer, simplified, SUMMARY COURTS-MARTIAL conducts a non-adver- who charges. The ac- of the sarial examination object nonjudi- statutory right 1. The by represented to be is not entitled cused punishment proceedings and sum- cial 1301(e); v. See R.C.M. counsel. Middendorf mary courts-martial 47 425 96 S.Ct. Henry, (1976). special as and courts-martial serve General 556 The limitations L.Ed.2d the trial criminal primary sentencing power venues for of a of justice system. military pu- in the See a prohibition against adjudging offenses include a 18-19, UCMJ, §§ 10 U.S.C. 818-819 in of discharge Articles confinement excess nitive or (2000). 1301(d). Military preside 20; these judges over Prior days. Article 30 represent accused, qualified including per- and a arraignment, courts an vessel, parties, subject narrowly exceptions may drawn in a assigned to or embarked son special for Arti- by certain courts-martial. See trial object to court-martial. 18-19, 26, UCMJ, §§ 20; objec- 27 10 818- Upon cles U.S.C. Article R.C.M. 1303. such (2000). may Rule for Courts-Mar- tion, convening authority 826-827 appropriate an 201(f)(1) (2) general [hereinafter tial special R.C.M.]. or court- refer the case to a — procedure general of evidence in rules and martial. many special and courts-martial are in re- exceptions Subject to the limited outlined spects quite applicable similar to those above, provisions is that the effect of these See, in criminal trials federal civilian courts. facing nonjudicial pun- a any service member 36, UCMJ, § e.g., Article 10 836 U.S.C. court-mar- ishment Schlueter, (2000); Military David A. Crimi- object any and that tial is entitled to insist 1-7, 15-18, (5th 37; § § nal at 694 Justice place proceedings take under formal further ed.1999). judicial Through objec- procedures. such expedited tions, may any also The UCMJ authorizes two a service member ensure procedures disposition place for minor of- a proceedings of will take before further First, commanding may use general fenses. officers a mili- special or court-martial where nonjudicial procedures impose disciplinary preside any pro- tary judge will over further punishments upon mi- their for ceedings, subordinates for Courts-Martial and Rules 15, UCMJ, Military nor infractions. Article 10 U.S.C. and apply, Rules of Evidence will § service represented Under will be the service member may variety minor members receive a of qualified counsel. punishments, pay, such as forfeiture re- of point at a service must which member rank, duties, imposition of duction extra object pro- an decide whether to informal limits, specified restriction to and correction- ceeding stage important custody days. al Arti- for more than 30 justice recognition key process. In informal, relatively cle procedures are and play advising that counsel can a ser- role repre- the service member is not entitled to point, has vice member at that our Court by qualified Manual sentation counsel. See admissibility of records limited the such (2002 ed.), Courts-Martial, United States opportuni- has not had when the accused A has Part V. service member See, ty e.g., counsel. trial of non- demand lieu Edwards, v. States M.J. judicial punishment proceedings, unless the (C.A.A.F.1997)(eiting Book- United States v. in a is attached to or embarked member (C.M.A.1977)); er, 5 M.J. 238 United States 15(a); v. vessel. Article see United States (C.A.A.F.1996) 259, 263-65 v. 45 M.J. (C.A.A.F.1997). Edwards, 46 M.J. 41 citing (plurality opinion United States Cox, Mack, (C.M.A.1980),

Second, may certain refer 9 M.J. 300 and commanders result). C.J., concurring part and charges against personnel to a sum- enlisted nonjudicial absence, Sentencing proceedings: of an thorized willful disobedience order, threat; punishment assault, communicating records and convictions a (4) a findings guilty courts-martial statement of were a charged returned as to three the four sentencing prosecu- proceeding, a (5) offenses; with a mark block check personnel tion certain introduce records noting Appellant representation waived accused, including punish- records (6) counsel; sentence; 1001(b)(2). ment under Article 15. R.C.M. convening authority’s the date of ac- The defense to the admission of a tion; signature containing signa- block inaccurate, grounds record on the that it is ture a noncommissioned officer with the incomplete, not made or maintained accord chief; Appel- title administrative departmental regulations, or that designed lant’s name. The check block record otherwise contains inadmissible evi- disbursing reflect notification the officer of may object dence. Id. accused also The on completed. not was grounds the provided that he or she was not with opportunity the to confer with counsel object Defense counsel did not to the ad- deciding by before whether to demand trial missibility object- of the document. Counsel Edwards, court-martial. See 46 M.J. at 43. by military judge ed to consideration the of portion describing that of the document the During sentencing, prosecution the offenses that did not involve absence on the may prior also introduce convictions of the grounds that such information irrele- was accused, including summary convictions vant, prejudicial and that it was more than 1001(b)(3). Among court-martial. R.C.M. probative. expressly Counsel that the stated objections may the that be to made the ad objection preclude defense did not consider- missibility summary of a court-martial con of summary ation the court-martial convic- viction, the accused cite absence of the military tion for unauthorized absence. The of proof review under Article U.S.C. objection. overruled the defense 1001(b)(3)(B). § 864 ad ruling by military judge on dition, may object the accused to the admissi objection specific pres- at is not issue in the bility summary of a court-martial conviction appeal. ent grounds that the accused was not affirmed, Appeals The Court of Criminal provided opportunity with the to consult with relying on Appellant’s object failure to prior deciding counsel to whether to to Kahmann, admissibility of the document. proceeding. See 45 M.J. at 264. expressly 58 M.J. at court 668. The stated “we attempting abrogate, that are not B. CONSIDERATION OF A PRIOR decision, this the mandate of Booker/Mack SUMMARY COURT-MARTIAL CON- servicemember must be afforded an VICTION DURING APPELLANT’S opportunity prior to consult with SENTENCING PROCEEDING (NJP) nonjudicial accepting punishment or a special At a court-martial he was where summary court-martial order for that dis- counsel, represented by Appellant was con- ciplinary aggrava- action to be admissible in absence, victed of pursuant unauthorized at a summary tion court-martial.” Id. pleas. During his the sentencing proceeding, Likewise, in appeal, this the Government trial counsel introduced a document from deny not does seek to servicemembers the Appellant’s personnel records entitled “Rec- right to consult with counsel such circum- (1070).” ord of Conviction Courh-Martial stances. following The document contained the en- organization tries: the name con- II. DISCUSSION court-martial; ducting the granted date of trial and a block with a mark questions check issue raises two noting concerning admissibility that the trial was sum- conducted the record court-martial; mary Appellant’s summary court-martial conviction charges specifications, including objection unau- an trial. despite the absence of at 59(a), UCMJ, First, 10 U.S.C. inadmissible be- dicial. See Article whether record is 859(a)(2000). § expressly Appel- cause it does state opportunity to provided lant was with the Appellant contends that the prior electing to pro- with counsel consult admitting judge erred in the record of sum Second, court-martial. ceed with mary conviction because record is because it whether the inadmissible Ap on its document not state face did required expressly that does not state an pellant opportunity had afforded completed was under review prior electing pro consult with counsel Military court-martial. The Under Rules of Evidence 103 ceed M.R.E.], admitting ruling placement of a statement on the docu [hereinafter evi such policy, as a appeal be ment desirable matter of dence will not overturned on unless trial, objec objection fact appropriate particularly was an in view of the that an there subject requires to consideration of error. In a tion to document the Govern prior adoption prove afforded case decided M.R.E. ment that the accused was counsel, admissibility prior that involved the of a conviction, compel so our Court the Government must do without ling provide military judge indicated that the had affir the accused to such evidence. Cowles, duty to ensure that the accused had See United States 16 M.J. mative (C.M.A.1983). a opportunity admissibility afforded an to consult of such been with record, however, depend affirmatively upon not the counsel and had waived the does placement to trial of such a statement on the face of court- Booker, document, prosecution may martial. United States v. 5 M.J. the and the (C.M.A.1977). oppor prove Appellant 243-44 that was the afforded tunity through to consult with counsel other cases, subsequent suggested In have we Mack, 9 Ab evidence. See M.J. at 322-23. governs admissibility that M.R.E. 103 the defense, objection by prosecu sent the the reflecting summary records obligation tion is under such no introduce see, nonjudicial punishment, convictions and evidence. e.g., Dyke, States v. 16 M.J. (C.M.A.1983),although expressly Appellant opinion Dyke, we have not our cites plain on position. proposition based a decision that We do so M.J. at that for today. upon A document predicated irregularities that summarizes sum- error nonjudicial mary support argu- court-martial conviction or In document. of this ment, punishment not significant Appellant does differ in re- on of the relies section 4008 spects subject from other that are Corps records to Marine Individual Records Adminis- (IRAM) Recognition importance sug- M.R.E. 103. tration as the Manual basis for gesting irregularities docu- various prior concerning nonjudicial an election ment at issue. punishment proceeding aor court- timely objection, irregularities Absent martial, see at does M.J. not provide not for do a basis relief without respect

require differential treatment showing any plain errors were or obvi that plain analysis. Accordingly, error we hold ous, they prejudicial. or As we that were admissibility of that the record from such a Dyke, “illegible noted a document that has governed by objection and signatures un or where some blanks remain plain provisions eiTor of M.R.E. 103. usually provide filled” would the basis analyze plain objection. of a trial

We a claim of error relief the absence three-part ap Dyke, were under standard United M.J. errors Powell, parent States v. 49 M.J. 464-65 on the face of the document. The (C.A.A.F.1998); (1) is, places four whether there document contained where (2) error; so, if signature Appellant or commander was an whether error his obvious; plain appeared, was or and if the error was should and each was blank. have error, plain preju- “was so or obvious whether it was We concluded that document incomplete error, on its face that the should obvious this is not such a case. There have excluded it on his own motion.” Id. is one obvious error on the face of the docu- ment —the absence of a check mark in the Appellant regulatory has identified three indicating block disbursing notification to the errors in pres- the document at issue in the case, however, present officer. In the Appel- ent case: language failure to include re- any prejudice lant does not might claim garding prior consultation with counsel have resulted from the absence of the check summary court-martial; failure to check mark, computing ap- such as an error in or indicating disbursing block that the offi- plying adjudged pay. forfeiture of Un- sentence; cer has been informed of the circumstances, any der these error (3) failure to signature include either the military judge admitting the document Appellant’s commanding officer or an inquiring missing without into the check person signing indication that the the form prejudicial mark did not constitute er- has done so direction commanding ror. officer. Each of distinguish- these matters is significant able from the facial defects of the apply Similar considerations Dyke. document at issue military judge contention that the by admitting erred the record aof by Appellant, As noted section 4008 court-martial conviction when the document of the IRAM our summarizes case law re did not contain a notation that review had garding admissibility of the record of a sum completed under Article 64. See mary conviction, provides 1001(b)(3)(B). Appellant has not paragraph “may” model be inserted on any statutory, regulatory, judi identified the reverse side of the document to reflect requirement place cial such a notation on a consultation provision, with counsel. This summarizing document a conviction sum however, does mandatory not establish a re mary objects court-martial. If the defense quirement. “may” Use of the term in this admissibility of a summarizing document non-binding guidance. context reflects The summary a court-martial conviction on the paragraph absence of the model on the face grounds that there is no evidence of review of the document Appellant’s introduced at 64, under Article the burden is prose trial plain does not establish a or obvious cution to demonstrate that such review has error, particularly light law, in of our case completed. to require which does not such a notation on the protect Appellant’s is sufficient to rights un Mack, document. See 9 atM.J. 322-23. 1001(b)(3)(B), der R.C.M. military and the respect required inquire With to is not the fact that to on his or her signed by document was own motion a whether such noncommissioned review has been completed. officer acting “by rather than an officer di rection” of the provided commander as in the IRAM, we requirement note that no such III. CONCLUSION appears on the face of the document intro Navy- decision of the United States duced at trial. The document at Corps Appeals Marine Court of Criminal signature by

issue a contains a noncommis affirmed. sioned officer with the title of administrative chief. It is not unusual in the armed forces CRAWFORD, Judge (concurring Chief in for noncommissioned officers in administra result): positions sign tive to official documents that by summarize actions taken agree officers. To the I majority While with the that there case, extent that there was a failure to follow an was a I separately waiver this write requirement personnel administrative judicial because I believe this Court has a manual, the obligation defect was not manifest on Supreme precedent to follow Court counsel, face of the regarding document. While there right pro- be to absent Courts-Martial, some records in which the absence of an vision the Manual for (2002 ed.) signature might officer’s military necessity constitute a or United States

315 follow the Su- year refused to is not an this Court doing The Court for otherwise. rejected the preme it Court can decide the result ombudsman which Middendorf States v. wants, holding and rationale pick and choose from and then I). (C.M.A.1977)(Roofcer Booker, that re- 5 M.J. 238 Superior precedents to suit Court’s implicitly I doing, In this Booker policy maker or so Court Nor it act as sult. right at a By arbitrarily deciding when and created a counsel legislator. by holding prece- to follow the constitutional courts-martial

whether Court, Supreme this Court not dents represen- of counsel or that absent waiver adjudi- legitimacy of its only undermines the tation counsel: cation, confidence public also undermines but (1) apply would not the escalator clause stability predictability courts-martial; justice. conviction courts-martial Supreme interprets the When the Court sentencing; for was not admissible Rights, Bill is bound those this Court 15s were not admissible Article they can rulings and their rationales unless sentencing; and token, distinguished. By the same when summary courts- Article 15s and specifically Supreme Court holds that the military-type of- martial were limited right apply, does not this Court is fenses. liberty reject at that decision. As to 259, v. 45 266 United States M.J. counsel, applied right this Court (C.A.A.F.1996)(Crawford, J., dissenting). Hamlin, Argersinger v. 407 rationale of Booker, 25, 2006, (1972), in In 5 246 32 L.Ed.2d 530 United States v. M.J. S.Ct. (C.M.A.1978)(BoofcerII), that, reconsid- holding representation absent coun Court counsel, sel, I 15s and right or waiver of the ered Booker and held summary-courts martial would not be admis courts-martial were not limited v. during sentencing procedures military-type or for offenses. United States sible Mack, 300, (C.M.A.1980), any purpose. other United States v. Alder M.J. (1973). and, man, Booker I rationale C.M.A. 46 C.M.R. 298 Court revisited the However, justify rejection Supreme spe opinion, sought a 1-1-1 its when the Court was issue, cifically applying faced with that it held that the the escalator Middendorf Illinois, apply to counsel did not clause based on Baldasar v. 446 U.S. (1980). Henry, courts-martial. 64 L.Ed.2d 169 100 S.Ct. Middendorf Supreme 96 S.Ct. 47 L.Ed.2d 556 When the Court later removed the U.S. liberty disregard underpinnings not at in Nichols v. This Court is to Baldasar States, holding. S.Ct. (1994), L.Ed.2d 745 this Court was once important It is to describe in detail this again apply to faced with the history selectively applying Court’s Su- Supreme precedent with re- current Court preme precedent right Court as to the Yet, spect right to the to counsel. it refused First, Alderman, counsel. in this Court contin- to do so in 45 M.J. at and adopted Supreme the rationale in Ar- Court application of con- ued this Court’s selective 299-300,

gersinger, C.M.A. at 46 C.M.R. precedents Supreme stitutional Court. Although Argersinger at 299-300. was a ci- Now, again oppor- not this has the vilian habeas action and did address once Court courts-martial, Court, tunity prior misapplication in summary this Al- to correct its however, derman, Sadly, extrapolated Argersinger Supreme from a re- Court decisions. only majority continue this quirement repre- for a waiver of counsel or not does the summary application of constitutional sentation counsel at courts- Court’s selective Supreme precedents at a established the martial for its results to be admissible later, Court, years majority also subsequent court-martial. Four but now the seeks by creating “impor- justify position in its a new Supreme Court held that Middendorf summary analysis. this Argersinger apply stage” not tant It is unclear what did Nevertheless, very “important stage” analysis practi- means to courts-martial. next might compared why tioners. In the future it be Booker I we should reexamine and analysis stage” with the “critical which has majority Mack. The undermines truth employed by Supreme Court sentencing by denying sentencing author- stage” numerous cases. “critical Neither the ity picture a true record. analysis possible military analog nor its new very employs comprehensive was or mentioned cited sentencing procedures which allow the de- Middendorf adopting case. At the time of the Uniform fense to introduce extensive evidence ex- Justice, Military Congress Code of knew the mitigation, grant tenuation and as well as import of various rights decisions and the expansive rights. accused allocution available to the accused at court- pres- Government should likewise be able to martial, responsibilities and the duties and picture ent a full and not be undercut this court-martial officer. And at apply Supreme Court’s refusal to Court deci- Middendorf, Supreme the time of Court sions. consequences knew the that could result Furthermore, deployed our forces are poten- from a court-martial and the terrorism, fighting worldwide the war on and greater punishment tial for if the accused result, judge fully engaged as a advocates are opted to the court-mar- only arena, military justice but also Yet, Supreme tial. still Court held law, assistance, in operational legal nu right apply counsel does not at the fields, complex legal camps, merous other summary court-martial. bases, serving by and fleets their side. The option greater The accused’s to obtain lawyers number of available is limited. rights at a unique is not Many training, of these are in resident military, present but is also in both the state billets, serving non-legal and thus unavail systems. example, federal For the de- varying periods discharge able for time appears fendant who before a United States CXXXIII, legal duties. 54 M.J. at CXLV. magistrate judge federal in a misdemeanor By continuing implicitly impose right case has the to be tried before a United by judicial right services decree a to counsel States district judge, including jury court prior accepting Article 15s and panel. requirement But there is no courts-martial, usurps legisla this Court available, option because this there must powers tive and executive and does what be advisement of the Congress both and the President have elect opting counsel before for a trial before ed not to do: further burden commanders district court. magistrate court ver- and senior officers their resolution of arena, sus district court the defendant operational Supreme matters. As the Court opt judge jury for a district court or a sub- Willoughby, stated in 345 U.S. Orloff jecting potential him or greater her 93-94, (1953): 73 S.Ct. 97 L.Ed. 842 so, punishment. poten- Even it was not the [Jjudges given running are not the task of greater tial punishment, pun- but rather the Army____ Orderly government re- imposed ishment that magis- at the quires judiciary scrupulous that the be as trate court level or misdemeanor court legitimate Army not to interfere mat- Supreme level on which the Court relied Army scrupulous ters as the must be determining when an individual is entitled to judicial interfere matters. counsel. reasons, already addition to the respectfully reasons For these I must de- mentioned, practical join majority opinion. there are reasons for cline to

Case Details

Case Name: United States v. Kahmann

Court Name: Court of Appeals for the Armed Forces

Date Published: Mar 23, 2004

Citation: 2004 CAAF LEXIS 310

Docket Number: 03-0522/MC

Court Abbreviation: C.A.A.F.