United States v. Bingham

3 M.J. 119, 1977 CMA LEXIS 9879

• Court: United States Court of Military Appeals
• Decided: May 23, 1977
• Docket: No. 31,550; NCM 75-1865
• Status: Published

Opinions

Opinion of the Court

PERRY, Judge:

The appellant was convicted by a special court-martial on March 14, 1975, for the possession and sale of lysergic acid diethylamide in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892. He was sentenced to a bad-conduct discharge, confinement at hard labor for 4 months, and forfeitures of $100 pay per month for 4 months. The special court-martial convening authority approved the findings and sentence, but he suspended the execution of the bad-conduct discharge for a period of 12 months.¹ The findings and sentence, as partially suspended, were approved by the general court-martial convening authority on July 1. However, on August 21, the general court-martial convening authority vacated the suspension of the punitive discharge. The appellant now challenges the procedural validity of the suspension action.² We conclude that the process followed was, in various respects, either statutorily or constitutionally infirm.

I

The facts leading to the revocation proceedings of complaint are not a matter of disagreement between the parties. On July 16,1975, charges were preferred against the appellant alleging two offenses of willfully disobeying a superior noncommissioned officer and one offense of possessing marihuana. The appellant was informed of these charges on July 17, and on the same day the special court-martial convening authority appointed an officer to conduct a vacation hearing, purportedly pursuant to Article 72, UCMJ, 10 U.S.C, § 872. He also appointed a defense counsel certified in accordance with Article 27(b) of the Code. The hearing was conducted on August 7, in conformity with the procedures established by Article 72, UCMJ, and paragraphs 97b and 34 of the Manual for Courts-Martial, United States, 1969 (Rev.).³

The record of the vacation proceeding reflects that the appellant was advised of the alleged violation of his probation.⁴ He was further advised of the name of the person alleging the violation and of the names of adverse witnesses; that a hearing regarding the alleged violation was about to be held; that he had a right to be represented by civilian counsel, selected military or appointed military counsel; of the rights to cross-examine all available adverse witnesses and to have witnesses examined; of the right to present matters in his own behalf; and that he had a right either to make a statement or to remain silent and that any statement could be used against him. The appellant was represented by his appointed defense counsel. Two Government witnesses testified that a search of the appellant’s person produced a plastic bag of suspected marihuana, and the defense stipulated that a subsequent analysis revealed the presence of marihuana. The defense presented a witness who testified that the appellant was not smoking prior to the search. The appellant testified that he had placed a plastic bag in his pocket because someone had remarked that the military police were coming, but he disclaimed ownership and knowledge of the bag’s contents.

The hearing officer summarized the evidence in a letter of transmittal and recommended that the suspension of the discharge be vacated, and the special court-martial convening authority (the brigade commander) concurred in the recommendation. The case was forwarded to the regimental commander who, in turn, sent it to the general court-martial convening authority, recommending vacation of the suspension. The staff judge advocate concurred in this recommendation, and the general court-martial convening authority effectuated it by vacating the suspension.

II

As stated above, the appellant before us contends that the military procedure for vacation of a suspended sentence does not comply with the requirements of constitutional due process expounded in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). At this point, a detailed comparison of the constitutional requirements discussed in these two landmark cases, against the process accorded military persons by Article 72, would be profitable.

In Morrissey v. Brewer, supra, the United States Supreme Court held that revocation of parole is not a criminal prosecution, and, therefore, that the application of the full array of rights found in a criminal prosecution is not required. However, the Court concluded that due process⁵ does require a prompt hearing near the place of arrest or parole violation, if a parolee is deprived of his liberty, “to determine whether there is probable cause or reasonable ground” to believe the parolee has violated his parole. Id. at 485, 92 S.Ct. 2593. Additionally, the Court noted that this preliminary hearing must be conducted by someone other than the parole officer involved in the case. The nature of the hearing the Court contemplated includes the following:

(1) Notice to the parolee of the time, place, and purpose of the hearing, including the alleged parole violations;

(2) An opportunity to cross-examine and confront adverse informants, unless the hearing officer determines they would be subject to risk or harm;

(3) An opportunity for the parolee to present evidence in his own behalf;

(4) A summary or digest of the hearing; and

(5) A determination by the hearing officer whether there is probable cause to hold the parolee for the final decision of the parole board, with a statement of the reasons for the determination, including the evidence relied upon.

Referring to what is described as the “second stage of parole revocation,” the Court determined that the parolee must be accorded a hearing prior to the final decision on whether to revoke his parole. It defined the procedural safeguards for this hearing as follows:⁶

They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

Subsequently, in Gagnon v. Scarpelli, supra, the High Court clarified the requirements of Morrissey by elaborating on the duality of hearings involved in a revocation proceeding. It noted that conventional substitutes for live testimony could be used when appropriate. As to the right of counsel, the Court held such right was not synonymous with a right to counsel during a criminal proceeding, but was dependent upon the facts and circumstances of each case, as required, to preserve the fairness of the proceeding.

On the other hand, Article 72, UCMJ, provides for vacation of a suspended sentence imposed upon a serviceperson in the following manner:⁷

(a) Before the vacation of the suspension of a special court-martial sentence which as approved includes a bad-conduct discharge, or of any general court-martial sentence, the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation. The probationer shall be represented at the hearing by counsel if he so desires.

(b) The record of the hearing and the recommendation of the officer having special court-martial jurisdiction shall be sent for action to the officer exercising general court-martial jurisdiction over the probationer. If he vacates the suspension, any unexecuted part of the sentence, except a dismissal, shall be executed, subject to applicable restrictions in section 871(c) of this title (article 71(c)). The vacation of the suspension of a dismissal is not effective until approved by the Secretary concerned.

(c) The suspension of any other sentence may be vacated by any authority competent to convene, for the command in which the accused is serving or assigned, a court of the kind that imposed the sentence.

While Article 72 does not define the nature of the hearing, paragraph 97e of the manual provides for a hearing similar to that prescribed for an Article 32 investigation in paragraph 34 of the Manual. Paragraph 97 b further refers to a form of record set out in appendix 16 of the Manual.

The procedure followed in the military pursuant to Article 72 and to the referenced Manual paragraphs differs from the standards set forth in Gagnon v. Scarpelli, supra, and in Morrissey v. Brewer, supra, in two major respects. First, as the appellant notes, Gagnon and Morrissey require both a preliminary hearing to determine whether there is probable cause to believe the probationer has violated the conditions of his probation, and a final hearing to determine whether the suspension should be revoked, whereas Article 72 prescribes only one hearing which serves as the basis for the action by the general court-martial convening authority. However, both Gagnon and Morrissey involved the continued detention of the individuals after their initial arrest for either return to the correctional facility for the parole revocation or the imposition of a sentence to confinement without any form of a hearing. Thus, in those cases, an initial determination was required to justify their continued detention. However, the Supreme Court observed in Moody v. Daggett, 429 U.S. 78, 86, 97 S.Ct. 274, 278 n. 7, 50 L.Ed.2d 236 (1976), “where petitioner has already been convicted of and incarcerated on a subsequent offense, there is no need for the preliminary hearing which Morrissey requires upon arrest for a parole violation” because the issuance of a parole violation warrant did not deprive the parolee of his liberty.⁸ In the present case, the appellant was not confined as a result of his misconduct. Thus, while the practice in the military under Article 72 is deficient in not prescribing a preliminary probable cause hearing in cases where the probationer is confined on the basis of the alleged violation, the appellant’s right in this respect was not abridged.

The second principal variation between military practice and that mandated by Gagnon and Morrissey has to do with what is required of the official who actually decides whether probation or parole ought to be revoked. The Court in Morrissey stated that one of the indicia of due process connected with the second hearing is that there must be a “written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.” Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2604. That portion of the opinion in Morrissey rests upon the practice in civilian courts where the official or body which conducts the second hearing will be the same entity which makes the final decision on revocation. Under Article 72, however, this is not the case; the hearing officer is the special court-martial convening authority, while the decision maker is the general court-martial convening authority⁹ in all cases emanating from general courts-martial or from special courts-martial with approved sentences including a bad-conduct discharge.¹⁰ Since the Supreme Court stated that it viewed its proper role as one, not of handing down a procedural code, but rather, of simply enunciating what the minimal due process guideposts were which must be found in any such code, we believe that it is constitutionally permissible for the second revocation hearing function to be separate from the final decision-making function. However, whether it is separate, as it is in the military, or coterminous, as the situation may well be in many of the States, we are confident that the Court, in Morrissey, did intend to require that the decision maker complete a written statement “as to the evidence relied on and the reasons for revoking parole.” Morrissey v. Brewer, supra at 489, 92 S.Ct. at 2604. Among other purposes which it may serve, this statement is the document upon which an appeal therefrom might be based. As the general court-martial convening authority who made the revocation decision in the appellant’s case executed no such report, the process followed herein is deficient.

We notice one additional problem with the hearing procedure followed in the appellant’s case — this time, in an apparent departure from the dictates of the Uniform Code of Military Justice. Article 72(a) of the Code provides that “the officer having special court-martial jurisdiction over the probationer shall hold a hearing on the alleged violation of probation.” The language is prescriptive and does not by its terms permit delegation of this responsibility.¹¹ Moreover, the reason the statute cannot be interpreted more flexibly so as to allow a delegation is apparent in an examination of the role that such convening authority plays in the process. The Supreme Court, in Gagnon and in Morrissey, contemplated that this “revocation hearing” officer would provide an evaluation of any contested facts and a determination of whether the facts, as found, warranted revocation. Thus, factfinding and discretionary powers of a quasi-judicial nature are lodged in the revocation hearing officer, and, as such, we believe they must be exercised by the statutorily empowered official,¹² unless that person is otherwise constitutionally disqualified. Thus, the hearing function in the appellant’s vacation proceeding was improperly conducted by someone other than the special court-martial convening authority.¹³

The decision of the United States Navy Court of Military Review is reversed as to the sentence. The record is remanded to the Court of Military Review which in its discretion may either approve a sentence which does not include a bad-conduct discharge or return the record to a competent authority to determine if a new vacation proceeding is practicable. See United States v. Glaze, 22 U.S.C.M.A. 230, 46 C.M.R. 230 (1973).

Chief Judge FLETCHER concurs.

1 . The appellant pleaded guilty. The suspension of the bad-conduct discharge was done pursuant to a pretrial agreement.

2 . Government counsel contend that, as revocation of probation is not a criminal proceeding, this Court has no power to review the vacation of a suspended sentence. Whatever the characterization of such proceedings, they are integral parts of a court-martial sentence which, as such, are reviewable by this Court. See United States v. Andreason, 23 U.S.C.M.A. 25, 48 C.M.R. 399 (1974); United States v. Lallande, 22 U.S.C.M.A. 170,46 C.M.R. 170(1973); United States v. Cecil, 10 U.S.C.M.A. 371, 27 C.M.R. 445 (1959); United States v. May, 10 U.S.C. M.A. 358, 27 C.M.R. 432 (1959). See also McPhail v. United States, 1 M.J. 457 (1976).

3 . Although the appellant was charged with several offenses, the record of the vacation proceeding reflects that only the alleged possession of marihuana was the subject of inquiry thereat. Moreover, in a letter of transmittal, the hearing officer discussed only this offense and noted that the appellant admitted he had possessed the contraband but claimed that he had been unaware of the nature of the substance.

4 . Additionally, the appellant was advised of the alleged probation violation through the charge sheet.

5 . The Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), was concerned with a State prosecution and, thus, applied the fourteenth amendment due process clause. The requirement of a hearing in federal proceedings, such as the instant case, is imposed by the fifth amendment.

6 . Morrissey v. Brewer, supra at 489, 92 S.Ct. at 2604.

7 . Because the present case involves a special court-martial sentence which includes an approved bad-conduct discharge, we are not here presented with a situation where a suspended sentence is vacated without a hearing. However, to whatever extent such “other sentence” emanates from a proceeding fairly termed a criminal trial, see Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), it would appear hearings would be required by Morrissey and by Gagnon in order to vacate a suspension of all or part of that sentence.

8 . In United States v. Tucker, 524 F.2d 77 (5th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976), the court noted the twofold problem and concluded that a preliminary hearing was not required when a probationer was incarcerated pursuant to a final conviction at the time of the attempted revocation. Similarly, the court in United States v. Strada, 503 F.2d 1081 (8th Cir. 1974), upheld a denial of a preliminary hearing where a probationer was not arrested prior to the revocation of his probation.

9 . Article 72(b), Uniform Code of Military Justice, 10 U.S.C. § 872(b).

10 . Article 72(a), UCMJ, 10 U.S.C. § 872(a).

11 . Paragraph 97b, Manual for Courts-Martial, United States, 1969 (Rev.), contains identical language to that of Article 72(a) of the Code. Commenting on the nature of the hearing required by paragraph 97b and Article 72(a), the drafters of the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, noted this decretive language and observed that any suspension of a sentence imposed by a requisite tribunal therefore, “may not be vacated without a hearing conducted personally by the officer exercising special court-martial jurisdiction over the ‘probationer’ ” [emphasis added]. However, in an attempt to circumvent the spirit of this statutory language, they noted that many such commanders simply will be too busy to conduct such hearings in their entirety. Therefore, the drafters endorsed what amounts to a bifurcated hearing at this level, with the initial stages being conducted by someone designated by the special court-martial convening authority. Only if, on the basis of that hearing, the special court-martial convening authority believes that vacation is warranted, will he then proceed to conduct what “may be [a] brief” hearing himself, at which the probationer “will be given an opportunity to consider the report of the preliminary hearing, object thereto, and submit new matter.” For the reasons discussed in this opinion, infra, we find this imaginative interpretation of Article 72(a) inappropriate.

12 . See United States v. Brady, 8 U.S.C.M.A. 456, 460, 24 C.M.R. 260, 264 (1957); United States v. Greenwalt, 6 U.S.C.M.A. 569, 573, 20 C.M.R. 285, 289 (1955); United States v. Bunting, 4 U.S.C.M.A. 84, 87, 15 C.M.R. 84, 87 (1954).

13 . We are not unsympathetic to the concerns expressed by the drafters of the Legal and Legislative Basis of the 1951 version of the Manual for Courts-Martial, that many commanders at the special court-martial convening authority level have other pressing command duties to perform. It would seem that, with the advent since that time of an independent judiciary at the trial level and of a transfusion of military magistrates into our system of justice, it ought to be reconsidered legislatively whether the special court-martial convening authority currently is the most desirable official to be conducting these revocation hearings.