United States v. Beckermann

25 M.J. 870, 1988 CMR LEXIS 196, 1988 WL 18302

• Court: U S Coast Guard Court of Military Review
• Decided: March 2, 1988
• Docket: CGCM 9996; Docket No. 896
• Status: Published

Opinions

DECISION

BAUM, Chief Judge:

Appellant was tried by a General Court-Martial composed of officer members and was convicted, contrary to his pleas, of one specification of larceny in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921, one specification of presenting for approval and payment a fraudulent claim against the United States in violation of Article 132, Uniform Code of Military Justice, 10 U.S.C. § 932, and six specifications of .conduct unbecoming an officer and a gentleman in violation of Article 133, Uniform Code of Military Justice, 10 U.S.C. § 933. Those six offenses include three specifications of wrongfully giving copies of servicewide examinations for advancement in rate to certain Coast Guard petty officers, one specification of wrongfully giving copies of the Yeoman First Class and military requirements for E-5 end-of-course tests to a certain Yeoman Second Class, one specification of wrongfully advising that same Yeoman Second Class that she could use an appraisal of items owned by the accused for submission of a false claim for loss of those items by the petty officer, and one specification of wrongfully requesting a petty officer to falsely notarize a quit claim deed. Appellant was sentenced to a reprimand, loss of 100 numbers and a fine of $37,-988.19, with the provision that he was to be confined for 15 months if the fine was not paid. After disapproving certain words in one of the specifications, the convening authority approved only so much of the sentence as provides for a reprimand, loss of 100 numbers and a fine of $15,000, with express disapproval of the alternative punishment of 15 months confinement. Thereafter, the record of trial was referred to this Court pursuant to Article 69(a), Uniform Code of Military Justice, 10 U.S.C. § 869(a) by the General Counsel, Department of Transportation, as Judge Advocate General of the Coast Guard.

Appellant has assigned six errors before this Court. In view of our disposition of this case, only the first assigned error need be addressed. In that assignment appellant asserts that the proceedings below are void because the trial judge was detailed as a general court-martial judge contrary to the terms of Article 26, Uniform Code of Military Justice, 10 U.S.C. § 826. Appellant contends that this precise issue was previously ruled upon by the U.S. Court of Military Appeals in United States v. Moorehead, 20 U.S.C.M.A. 574, 44 C.M.R. 4 (1971), and that decision is controlling here. We all agree that Moore-head should determine the outcome on this issue. There is disagreement, however, on what Moorekead requires. Judge Bridgman and I believe that the designation of the general court-martial judge in this case violated the terms of Moorekead and Article 26, Uniform Code of Military Justice, leaving this court-martial jurisdictionally deficient. Judges Josephson and Burgess view the matter differently, seeing compliance in this case with Article 26 and the requirements of Moorekead. Our separate views on this issue follow, but we are in agreement that the resolution of this case is determined by application of Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) and Rule 4(a) of the Courts of Military Review Rules of Practice and Procedure and that they require, the setting aside of the findings and sentence.

Article 26(c), Uniform Code of Military Justice, in pertinent part, provides as follows:

The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, ... A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only when he is assigned and directly responsible to the Judge Advocate General, or his designee, of the armed force of which the military judge is a member and may perform duties of a judicial or nonjudicial nature other than those relating to his primary duty as a military judge of a general court-martial when such duties are assigned to him by or with the approval of that Judge Advocate General or his designee. (Emphasis added).

In United States v. Moorehead, supra, the general court-martial judge was an officer permanently assigned to the Legislation and Regulations Division in the Office of Chief Counsel of the Coast Guard. The Chief Counsel, under a designation of authority from the Transportation Department General Counsel, ordered this particular officer to preside on a one time basis as military judge in the general court-martial in question while still continuing to meet his responsibilities within the Legislation and Regulations Division. At trial, the judge conceded it was obvious that his primary duty was not as military judge. On this point, however, the Coast Guard Court of Military Review said:

We think that the term “primary duty” as used in Article 26(c) must be construed to permit an interpretation that is consistent with the literal requirements of the statute. We therefore believe that, in the Coast Guard, a certified military judge who has a permanent assignment with the Office of the Chief Counsel may regularly perform professional legal work assigned to him by or with the approval of the Chief Counsel until the occasion when a general court-martial arises and he is designated to be its military judge. When that occurs, it thereupon becomes his primary duty to be military judge of a general court-martial.

United States v. Moorehead, Docket No. 711 (C.G.C.M.R. 30 October 1970) (Unpublished) at p. 8.

As a preface to this statement, the Court said,

Congress did not require that trial judiciary units be established, and it was not feasible to do so in the case of the Coast Guard. The legislative history does not support the notion that Congress intended the Coast Guard to do what the Act did not expressly require it to do.

Id. at p. 8.

The case was thereafter sent to the U.S. Court of Military Appeals by the Department of Transportation General Counsel. The question certified was whether the Court of Military Review was correct in its determination that the Coast Guard’s method of assigning a military judge to a general court-martial complies with the requirements of Article 26(c), Uniform Code of Military Justice. The Court of Military Appeals answered that question in the negative, finding that Article 26(c) was not complied with because the military judge did not have the primary duty of trying general courts-martial cases. In so holding, the Court of Military Appeals rejected the Court of Military Review’s outlook that the Coast Guard was exempt from establishing a trial judiciary. The Court expressly condemned an arrangement that called for the one-time use of a military judge in the trial of a general court-martial.

By 1972, in furtherance of the decision in Moorehead, supra, the Coast Guard had assigned two officers directly under the Chief Counsel as full time general court-martial military judges to sit on all general courts-martial in the Coast Guard and enough special courts to ensure that their primary duty was that of military judge. The steps taken in this regard appear in the 1971 and 1972 Annual Reports of the U.S. Court of Military Appeals and the Judge Advocates General required by Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867, at pages 41 and 39 respectively of the Department of Transportation General Counsel’s portion of those reports. The fiscal year 1978 accounting for the Coast Guard and subsequent reports indicate a reduction from two to one full-time general court-martial judge.

The one permanently assigned general court-martial judge recused himself from participating in the trial of appellant and the Chief Counsel turned to the District Legal Officer for the Twelfth Coast Guard District to act as judge in this case. In an effort to comply with Article 26(c), Uniform Code of Military Justice and certain language in United States v. Moorehead, supra, orders were issued by the Commandant of the Coast Guard on 23 May 1986 relieving that officer of all duties as Twelfth Coast Guard District Legal Officer, effective 28 May 1986, to assume on that date “[t]he duties of the West Coast Military Judge.” This electronically transmitted message went on to say that, “[t]his order constitutes a temporary change in assignment and remains in effect until SNO [subject named officer] is released by COMDT [Commandant] (G-PO) to assume normally assigned duties.” Record of trial Appellate Exhibit III. The Commandant later released this officer from judging duties in a message order on 2 July 1986, the day after the instant trial was completed, returning the judge to his permanently assigned duty as District Legal Officer. While the temporary duty orders were in effect, the judge presided in only the instant trial, which commenced on June 23, 1986 and terminated on July 1, 1986. During the period of his assignment from May 23rd to July 2nd, the judge continued to perform at least two district legal functions pursuant to general authority contained in a letter of 23 May 1986 signed by the Chief Counsel.¹

Based on these facts, appellant argues that the same infirmity encountered in Moorehead, supra, is present here. He submits that, despite disclaimers to the contrary in the Chief Counsel’s letter, the judge’s primary duty was as District Legal Officer, not general court-martial judge. Judge Bridgman and I agree, believing, as we do, that the message orders and Chief Counsel’s letter were intended to effect the one-time use of a district legal officer as military judge of a general court-martial, the practice condemned by the Court of Military Appeals in United States v. Moorehead, supra. The Government, on the other hand, contends that there has been compliance with the requirements of Article 26(c), as elaborated upon by the Court of Military Appeals. In so arguing, the Government submits that the procedures here complied with the terms of Article 26(c) and Moorehead, supra, because the judge in this case was placed in a separate assignment category where he was designated to function in the trial of general courts convened during the period of that assignment.

It is certainly true that the message orders in this case purport to place the officer in such a category, so that there appears to be a literal compliance with the following language from Moorehead, supra:

A military judge does not have the primary duty of functioning in the trial of general courts-martial unless he is in a separate assignment category in which he is designated to function in the trial of general courts convened during the period of that assignment.

44 C.M.R. 10.

If the Government’s argument is accepted, however, the practice of random or onetime use of military judges for general courts-martial could be effected on a regular basis by simply issuing temporary duty orders to a qualified officer whenever necessary or convenient for the trial of a pending general court-martial. Judge Bridgman and I do not believe Article 26(c), Uniform Code of Military Justice, as explicated in Moorehead, supra, allows such a result. Accordingly, we believe the message orders and letter from the Chief Counsel, which caused the permanently assigned Twelfth Coast Guard District Legal Officer to function one time as a general court-martial judge during a 40 day period while those orders and designation were in effect, violated the terms of Moorehead, supra.

Judges Josephson and Burgess, in their dissent, see no indications in the instant case of the concerns which led to the decision in Moorehead. I reach the opposite conclusion. In my view the basic concern in Moorehead was the Coast Guard’s failure to comply with the jurisdictional requirement of Article 26(c), Uniform Code of Military Justice, that judges designated for general courts-martial must be in a separate assignment category under the Judge Advocate General, or his designee, with primary duty as a general court-martial judge. The assignment category for the judge in the instant case was legal officer for a general court-martial convening authority. That was the permanent primary duty of the officer in question before he was designated judge in this case and that was his permanent primary duty after the trial was completed. In my mind, there is just no getting around the fact that this district legal officer was designated as judge solely for the trial of this one general court-martial. Congress amended the Uniform Code of Military Justice to stop such practices and the Court of Military Appeals has confirmed this Congressional intent. It is irrelevant to the ultimate decision in the case before us that the judge may have been experienced; or of proven judicial ability and temperament; or known for his integrity and ability to withstand pressure from a general court-martial authority superior. As Judges Josephson and Burgess accurately point out in another context, it is the institutional or organizational scheme by which judges are detailed to general courts-martial that is of concern, not the qualities of the individual so assigned. Moreover, since this issue is jurisdictional in nature, the question of prejudice to the accused, or the good faith of those who made the decision to assign a judge in the manner indicated, are not matters for consideration.

As our separate opinions indicate, we are evenly divided on the jurisdictional issue of compliance with Article 26(c), Uniform Code of Military Justice. We have reached this impasse because only four of the five judges on our Court have participated in this decision. Judge Barry, the fifth judge, recused himself at the outset due to prior disqualifying involvement in the case before his appointment to the Court. We, thus, find ourselves unable to break the tie vote without the appointment of another judge to this Court — a course of action we believe both inappropriate and unnecessary. What results, then, from this split of views?

The general rule at the appellate level is that where the judges are equally divided, the judgment below is affirmed. 5 Am.Jur.2d Appeal and Error § 902. We do not believe that general rule is applicable to Courts of Military Review. Contra, United States v. Peurifoy, 47 C.M.R. 242 (A.F.C.M.R. 1973). Review by our Court is not discretionary. Once a record has been referred to this Court under the terms of either Article 66 or Article 69, Uniform Code of Military Justice, we must review and act upon it before the case can become final under Article 76, Uniform Code of Military Justice, 10 U.S.C. § 876. Furthermore, Article 66(c), Uniform Code of Military Justice says a Court of Military Review, “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Rule 4(a) of the Courts of Military Review Rules of Practice and Procedure says, “[t]he determination of any matter referred to the panel shall be according to the opinion of a majority of the judges participating in the decision.” Our conclusions from these provisions are that we must review and act on this case that has been properly referred to us and that in order to affirm the results of this court-martial, a majority of the participating judges must determine that the findings and sentence are correct in law and fact. Without a majority determination to this effect, we believe a reversal is required. In reaching this result, we are not unmindful of United States v. Waymire, 9 U.S.C.M.A. 252, 26 C.M.R. 32 (1958), a case in which the Court of Military Appeals returned the record to an Army Board of Review for further action when the two members of that Board were unable to agree on a jurisdictional issue. The Court indicated that the Board of Review had improperly side-stepped the legal issue with a compromise holding setting aside a finding of guilty solely on the basis of “substantial justice.” The Court said that such action exceeded the scope of the Board’s authorized statutory functions under Article 66(c), Uniform Code of Military Justice, the Code provision now applicable to Courts of Military Review, with only slightly modified language. In contrast, we have faced the jurisdictional issue head-on without attempting to dispose of the case in a manner not authorized by statute, as was done by the Board of Review in Waymire, supra. Unable to muster a majority vote either way on the jurisdictional issue, we have determined the effect of a tie vote on that issue. We do not believe Waymire, supra, addressed this matter, language in that opinion to the contrary notwithstanding, which could be taken to indicate that a majority must determine that findings are incorrect in law and fact before they may be disapproved. We find no basis in the Uniform Code of Military Justice for this Waymire dicta. The Code, however, is clear with respect to the requirement that findings may be affirmed only when determined to be correct in law and fact. The logic of our Court Rules requiring such determinations to be based on majority rule is compelling. A majority not having found jurisdictional sufficiency with respect to the trial judge’s appointment, the findings of guilty and sentence are set aside. Another trial may be ordered.

1 . This letter is attached as appendix 1 to the opinion and, despite the format indicating that • it was from the Commandant, the letter was signed by the Chief Counsel, who is the only officer expressly authorized by the Department General Counsel to designate general court-martial judges under Article 26(c), Uniform Code of Military Justice. See 49 C.F.R. Pt. 1, Subpt. C, App. A, para. 2.(a)(3) (1986).