*1 STATES, Appellant, UNITED TUALLA,
Joselito C. Electrician’s Class,
Mate Third Coast
Guard, Appellee.
No. 99-5002.
Crim.App. No. 1079.
U.S. Court
the Armed Forces.
Argued Oct.
Decided Jan.
EFFRON, J., opinion delivered Court, GIERKE, J., COX, S.J., in which CRAWFORD, joined. C.J., filed concur- SULLIVAN, ring opinion. opin- filed an concurring part ion and in the result. Lieutenant Commander Appellant: For Reilly (argued); Captain Chris P. Michael J. Devine, Polizzotto, Lieutenant Susan brief). (on Lieutenant Benes Aldana Lieutenant K. Appellee: For Sandra Sel- man, (argued). USCGR opinion EFFRON delivered the the Court. composed mili-
tary judge sitting appellee, alone convicted pursuant pleas, following of- specifications two fenses: of unauthorized *2 229 FORFEI- ADDITION TO FINE IN absence, Uniform of Article violation THE COMBINED Justice, 886; § one TURES WHERE Military 10 of USC Code order, DO NOT FORFEITURES FINE AND obey a lawful specification of failure to 92, UCMJ, THE AMOUNT OF TWO- 10 EXCEED of Article USC in violation AUTHO- FORFEITURES 892; of THIRDS specification wrongful of use § one 112a, steroids, THAT FORUM. RIZED FOR in violation of Article anabolic UCMJ, 912a; specifications § three 10 USC 867(a)(2) 67(a)(2), UCMJ, § 10 Art. USC See UCMJ, assault, in violation of Article of ground that RCM reverse on the We 928; eight specifications of § 10 USC Courts-Martial, 1003(b), United for Manual 134, UCMJ, § 10 USC violating Article (1998 ed.), preclude special does not adultery, specifications of five which included imposing a from sentence specification intentionally injuring of one fine and forfeitures. includes both himself, specification obtaining of Gov- telephone a value of services of ernment I. BACKGROUND pretense, specifica- false and one $996.60 is authorized to establish The President willfully wrongfully confining and of tion punishment for offenses under the maximum holding against an individual her will. UCMJ, Code subject to limitations Appellee was sentenced to a bad-conduct types of specific offenses and applicable to months, discharge, confinement for 5 reduc- UCMJ, See Art. USC courts-martial. E-2, pay grade of one-third tion forfeiture 18-20, UCMJ, 856; § Arts. see also USC months, fine pay per month for 6 and a of pun- (jurisdictional limitations on §§ 818-20 $996.60, of for further confine- imposed by general, ishments paid. if the was not ment of one month fine courts-martial). The special, summary provision, Except the fine-enforcement for has authorized courts-martial President disapproved, convening au- which was punishments, including impose a of thority adjudged, approved the sentence as imposed present forfeiture case: those fine at including the and forfeitures issue fines, grade, pay confine- pay, reduction appeal. this ment, separation. punitive 1003(b). Appeals approved The Court Criminal fine, The findings. disapproved UCMJ, provides Article 10 USC approved portion sentence authority courts-martial to broad discharge, con-
which included bad-conduct punishment “adjudge any forbidden” months, finement for 5 forfeiture of $326 regulations as the the UCMJ “under such months, per for 6 and reduction to E- month may prescribe.” statutory President The 2. 50 at 565. MJ imposed pertinent limitations to the sentence Department preclude General Counsel case under Article 19 Transportation this certified the case to adjudging court-martial from sen- Court, requesting following is- review the that includes dishonorable tence months, sues: forfei- confinement for more than pay per pay exceeding two-thirds ture THE I. COAST GUARD WHETHER month, pay for than 6 or forfeiture of more APPEALS COURT OF CRIMINAL expressly 19 does not limit months. Article IN ERRED AS A MATTER OF LAW punishment adjudged in types the other STATES FAILING TO APPLY UNITED case, including and reductions in (CMA HARRIS, 1985), MJ 331 AS Sears, 18 grade. BINDING PRECEDENT. (CMA 1984) (special courts-martial II. THE WHETHER COAST GUARD fines). impose authorized to APPEALS COURT OF CRIMINAL adjudica- regulated has IN The President AS A MATTER OF LAW ERRED in RCM PRE- of fines THAT RCM tion HOLDING paragraph on A which based SPECIAL COURT-MARTIAL VENTS Courts-Martial, 126/i(3) A Manual for TO FROM IMPOSING SENTENCE (Revised edition). ceedings United on an See was based unrelated issue Manual, supra admissibility involving A21-68.1 of a confession. 1985), States v. adopted by The view of Harris the Court challenged legality accused of his Criminal is too narrow. Our deci- court-martial sentence —which included both *3 sion subsequent and order in that case did that, a fíne ground and forfeitures —on the not reverse or set aside the court-martial Manual, only general under the a court-mar- sentence, which combined a fine and forfei- tial to was authorized combine fines and for- Instead, tures. pertinent set aside the we rejected feitures. Harris that portions of the lower court’s decision and Manual, concluding of the that a fine and provided the court and convening lower au- forfeitures in single could be combined a thority option with the to choose among a sentence, summary court-martial proceedings, including further long so as the total combined did not exceed complete sentence, rehearing, rehearing on the maximum amount of the forfeitures that or reassessment of the sentence. See 19 MJ adjudged could be at such a court. Id. at at proceed- MJ 173. Each of these ings possibility carried the of a sentence that 1003(b)(3) RCM of the current Manual em- included a fine and forfeitures. ploys pertinent similar in terminology re- concerning Our decision in Harris fines spects to from the 1969 Manual and forfeitures was not an idle remark made at issue in Harris. See United in passing, designed guide but was to (AFCMR Gonzalez, 1991); proceedings. conduct of all any such At (NMCMR Czech, 1989).
States v. MJ 563 proceedings, the further it would have been There have been no amendments to RCM impermissible for the lower court or mili- 1003(b)(3)subsequent to our decision in Har- tary judge of our light holding Harris— —in ris. prohibit to court-martial from im-
posing a sentence that combined a fine and forfeitures. II. DISCUSSION pertain The same considerations would Holding A. in Harris recipient we were the of a similar remand Appellee challenged aspects various of his order Supreme from the Court. Had the sentencing proceeding in appeal to the Supreme Harris, Court issued its decision Appeals, Court of Criminal but he did not precluded would have us from prohibiting a question the combination fine and forfei- combination of during a fine motion, tures. On its own the Court of further proceedings the case. The lower Appeals, addressing Criminal without Har- courts are no less bound the decisions of ris, ruled that no such combination could be this Court. v. Allbery, adjudged by court-martial. 49 MJ reconsideration, Upon at 556. the court de- Interpretation B. The of the clined to ground follow Harris on the that Manual Harris concerning discussion Harris forfeitures was dicta.” 50 In “obiter 563- the court below 64. The court focussed on the fact apply ground declined to Harris on the Harris, dicta, decision, to order pro- decision further if not should be respect power types power 1. With the different lows: "All have the to ad- courts-martial fines, adjudge courts-martial RCM judge fines instead forfeitures in cases involv- 1003(b)(3) provides: "Any may ing members of the armed forces. General judge a fine instead of forfeitures. General power adjudge further courts-martial have the may adjudge also courts-martial fine in addi- appropriate fines in to forfeitures in addition Special summary tion forfeitures. courts- B, Special cases. See 127c. Section and sum- any may adjudge martial not fine in excess of the mary may adjudge any fine in may total amount of forfeitures which be ad- excess of the total amount of forfeitures which (3) 126h judged Paragraph in that case.” adjudged case.” in a 1969 Manual the same addressed matter as fol- to abandon of whether considering our consideration whether overruled. into Execu- account have taken guided by we precedent, we overrule interpretation of in the acquiescence tive funda- decisis. Under this doctrine stare opinion. forth in set RCM “is principle, adherence mental has other prescribed Although the President promotes it preferred course because nine at least to the Manual on amendments evenhanded, predictable, consistent years nearly 15 since Harris occasions legal reli- development principles, fosters decided, to RCM including amendments was decisions, judicial and contributes on ance changes made have been no perceived integrity of the actual and 1003(b)(3). process.” judicial 808, 827, 111 interpretation, Executive purposes For *4 is entitled to considerable acquiescence ease with which weight in view the relative principle of decision Stare decisis is a authority the Manual can be amended. rule, applied making, a and need not be not Order, Manual, is an Executive to revise the precedent the at issue is “unworkable when individual, single the President. vested in a general Id. a badly ... reasoned.” As the President takes aware that We are well matter, however, “[ajdhering to ‘is differing a of views from into account policy, in most mat usually the wise because the considering amendments to when sources important applicable that it is more the ters Manual, has the none of those sources settled than it be settled rule law be when the power to block an amendment ” (quoting Burnet v. Coronado Oil right.’ Id. improperly a that court President believes Co., & Gas incorrectly interpreted provi- overruled or (1932)(Brandeis, J., dissenting)). L.Ed. acquies- sion of the Manual. The President’s interpretation of a cence in this Court’s Man- present the court below In the as- provision period extended of time ual over an improperly Harris overruled a serted that strong support proposition the that lends to provision of the Manual for Courts-Martial poorly nor rea- neither unworkable Harris is by permitting the combination of Moreover, acquiescence easts soned. such special forfeitures in courts-martial. by the suggestion on the considerable doubt agree at 564-65. do not that We Harris in Harris court that our Court over- below that overruled the Manual. We note the provision ruled a of the Manual. expressly prohibit the com- Manual does not The Effect of Article 58b C. special of fines bination and forfeitures context, In courts-martial. that Harris proposition the We have considered involving be viewed as a case an should prohibition by the court below that a vanced suscepti- interpretation provision aof that is by of fines on the combination constructions, including varying the ble by en- required is the below, interpretation the by offered court 58b, UCMJ, 10 USC actment of Article overturning than a case rather as XI, 104-106, § Pub.L. No. Title 858b. the of Manual. § as amended Pub.L. Stat. 104-201, No. Stat. decisis, the doctrine of stare Under 58b, not Article even forfeitures are Under interpretation question is not whether court-martial, ser- imposed by a it plausible; is is the lower court offered required is two-thirds vicemember forfeit Harris so unwork- whether the decision is period pay during a of confinement due poorly that it should able or reasoned the sentence includes a bad-conduct when references, The historical draft- overruled. subject statutory exceptions. considerations, policy matters cited ing that below determined that by the court below do not demonstrate Because Harris, interpreted precluded is effective date considerations appel- unworkable, poorly of Article 58b forfeitures or that Harris so rea- present- lee, not that court was overruled. soned it should be question light ed tion in the whether combina- affirmative. of that con- clusion, tion of a fine and forfeited Article first certified is moot. subject 58b would be to either RCM The decision of the Coast 1003(b)(3) jurisdictional or the limitation on Appeals Guard Court of Criminal is affirmed special courts-martial of Article 19. In that findings as to and set aside as to sentence. posture, the enactment Article 58b does The of trial is to the record returned General provide applica- not rejecting basis Transportation Department Counsel of the tion Harris case. proceed- for remand to court for further ings. Moreover, although we decline offer relationship definitive CRAWFORD, Judge (concurring): Chief
between Article 58b and RCM
specific
absence
case or controversy,
The Court of Criminal
erred
we
provisions
note
failing properly
apply
two
United States
necessarily
1985),
many
conflict. There are
cir-
to the facts
cumstances in
which sentence could include
case.
readily conceding
While
implicating
fine without
applicability
Article 58b. For
of stare decisis to this case’s
resolution,
example, pay is not
again
forfeited under Article
I write
to remind our lower
58b if a
court-martial sentence does
courts that the doctrine is not a
talisman
*5
not include a
bad-conduct
if
allegiance
given.
the which blind
must be
See
confinement,
(1995);
sentence does not include
Boyett,
or if
United States v.
58b(b).
226,
forfeiture is waived under Article
Allbery,
United States v.
Likewise,
(1996)
J.,
(Crawford,
the Article 58b
in-
concurring
part
in
and
period
volve a
dissenting
of less than 6
part).
months’ confine-
in
ment,
possible
isit
that the combination
aof
precedent
appli-
considering
and its
fine,
forfeitures,
adjudicated
forfeit-
deliberation,
cability
any
case under
adjusted
ed under Article
can be
58b
to avoid
facts,
lower court’s initial touchstone is the
1003(b)(3).
implicating RCM
Careful action
scope
perhaps
prevailing
of
condi-
by convening
judge
authorities and staff
tions,
gave
preceding
which
to the
judg-
rise
issues,
may
many
vocates
well moot
of
particularly
in
ment. This is
true
cases that
possible
and it is
the President
evidentiary
procedural
involve
rules.
issue an
to the
amendment
Manual before
828,
808,
See
v.
501 U.S.
any
In any
such issues reach our Court.
2597,
111 S.Ct.
terpretation
provision.
of
The contro-
versy
usually
application
is
over the
to ex-
III. CONCLUSION
isting
well-recognized
of some
conditions
Regardless of whether Harris
is
constitutional limitation.
a binding precedent
Allbery
viewed as
Co.,
Burnet v. Coronado Oil & Gas
merely
or
aas
reasonable
410,
52 S.Ct.
intervening developments in the
SULLIVAN,
(concurring
part
trends;3
the historical
policy, or social
result):
precedent was
analysis underlying the
pre
directly
is
argue
wrong.4 One could also
that cases
four
our
to our Court —can
sented
by
other
margin
this or
decided
narrow
our
disregard one of
appellate
lower
courts
prece-
appellate courts should have less
ques
precedents? This is
core
Court’s
unanimous ones.5
dential value than
issue.
I
tion in the first certified
would
thing
give
It
an “uncer
is one
majority doesn’t.
I would
answer it. The
”
con
thoughtful
emonious ‘heave-ho’ without
important
is
answer it because the answer
Virginia
Harper
Depart
sideration. See
v.
viability
of stare decisis
of the doctrine
Taxation,
86, 108-09,
ment
U.S.
system
military.
justice
our
(1993) (Scalia,
simple
question is that our
answer to the
Maltz,
concurring)(quoting Earl M.
Some
rule,
fol
precedents, as a
must be
Court’s
Thoughts
on the Death
Stare Decisis
However, in the
lowed
the courts below.*
Law,
467);
Constitutional
1980 Wis.L.Rev.
circumstances
United States
(n. below)
Lee,
It
supra,
see also
(CMA 1985),
jettison
cir
quite
law when the
another to
not bound or controlled
its
below was
ap
changed
have
and a
cumstances
former
reasoning.
experi
proach “must bow ‘to
lessons of
reasoning.’”
ence and the force
better
two-judge
States v. Harris was
435, 450,
Solorio United
judges
of this
decision
Court. One
*6
(1987)(quoting
107